New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 11 April 2015
Alberta Aboriginal Youth Justice Committees
Restorative Justice Issues
BY MARIANNE NIELSEN*
The Aboriginal Youth Justice Committees located in Alberta, Canada are restorative justice programmes that provide services to First Nations young people in trouble with the law. The Committees play one of two roles: either they are community-based sentencing advisory bodies to youth justice court, or they offer Alternative Measures to young people referred to them by the police. A very few Committees do both. In Indigenous communities, the Committees are overwhelmingly sentencing advisory bodies, therefore the Committees discussed in this paper are of this kind.
In this article, the Aboriginal Youth Justice Committees are analyzed in terms of issues that have been associated with non-Aboriginal restorative justice programmes, but first, background is provided on the experiences of First Nations young people with the Canadian criminal justice system; and then the history of the programme is briefly described. In addition to documents from government, organizations and newspapers, this article is based on the content of interviews with Youth Justice Committee members, criminal justice system members such as judges, police officers, and courtworkers and Aboriginal community members in nineteen Alberta communities. Wherever possible, the actual words of the respondents are used.
Background on First Nations Juveniles and the Canadian Criminal Justice System
About 58% of the Canadian Aboriginal population is under the age of 25, compared to about 38% of the non-Aboriginal population (LaPrairie, 1992:286). There are 46 First Nations in Alberta with many different languages and cultures. In 1996, 46 % of the Alberta First Nations population was aged 20 years or younger compared to 29 % of the overall population (Alberta, 2000).
Under the Youth Criminal Justice Act 2000, the young offender system in Canada deals with youths between the ages of 12 and 17 inclusive. Children under the age
* Dr Marianne Nielsen is an Associate Professor in the Criminal Justice Faculty at
Northern Arizona University, USA.
of 12 are considered incapable of criminal wrongdoing and are dealt with by the provincial social welfare legislation and departments (Yates and Yates, 1993). Not surprisingly, Aboriginal young people are over-represented in juvenile courts, especially in the Western provinces. In Alberta's circuit courts, for example, about 36% of those appearing in court were Aboriginal. In urban Edmonton Alberta courtrooms in the 1980s, they represented about 14% of those appearing (Bala and Corrado, 1985); this proportion steadily increased into the 1990s (Cawsey, 1991a). The crimes Aboriginal young offenders commit are very similar to those committed by non-Aboriginal young offenders, that is, property offences such as shoplifting, break and enter, and theft. Their committal rates, however, are much higher (LaPrairie and Griffiths, 1982). According to Jackson (1989:216), 'prison has become for young native men, the promise of a just society which high school and college represent for the rest of us.'
LaPrairie (1990) suggests that there are three overlapping explanations for why Aboriginal people are over-represented in the Canadian criminal justice system: they commit more offences than non-Aboriginals, they commit offences that are more easily detectable, and they receive differential treatment from the criminal justice system. The explanations for Aboriginal young (and adult) offenders committing more offences, and more detectable offences, are complex and associated with the processes of colonization (Frideres, 1993; Hamilton and Sinclair, 1991; Griffiths and Verdun-Jones, 1994; Cawsey, 1991a). First Nations peoples in Canada, like Indigenous peoples in most colonized regions of the world (Burger, 1987), have been marginalized economically, legally, politically and socially. They suffer from: economic dependency, social inequality, assimilative state policies, lack of political self-government, cultural conflict with the dominant society, and individual and institutionalized discrimination. Cultural oppression is another factor. Assimilationist state policies forbid the practice of cultural ceremonies and made the exercise of most Aboriginal social institutions extremely difficult. In the current day, the mass media, especially television, must be added to the list of cultural processes having a negative impact on Aboriginal social institutions (Ross, 1992). In combination, these processes have led to: poverty, high unemployment rates, low educational achievement rates, high mortality rates, high rates of alcohol and drug abuse, high suicide rates, high rates of family violence and, as discussed above, high crime rates. According to the Government of Alberta (2000: 7), 'over 30 % of Aboriginal people have disabilities that limit their physical, mental and emotional well-being and their ability to participate in economic activities.' Most of the Aboriginal young offenders in Alberta's and Canada's young offender centres come from dysfunctional families, have limited employment opportunities, grew up in foster homes, lack a sense of their Aboriginal identity, were subjected to negative peer and family pressures, engage in alcohol and drug abuse, became involved with the criminal justice system at an earlier age than non-Native youth,
ran away from remote communities to urban areas, and do not really understand the criminal justice system or the complexities of non-Aboriginal society (see LaPrairie, 1995; LaPrairie and Griffiths, 1982, Cawsey, 1991a). Some also have different expectations, rooted in Aboriginal cultures, about what the justice process should do (see Dumont, 1993).
The third explanation for over-representation, differential treatment by the criminal justice system, focuses on a number of factors external and internal to the criminal justice system. External factors might include the amount of reporting by the community to the police, and community acceptance of responsibility for dealing with crime (Griffiths and Verdun-Jones, 1994). Factors internal to the system revolve around decision-making by criminal justice system members at important points in the process. Reports by such important government-mandated groups as the Manitoba Justice Inquiry, the Marshall Inquiry, the Cawsey Commission and the Royal Commission on Aboriginal Peoples have documented discrimination by the Canadian criminal justice system against Aboriginal people. For example, the Marshall Inquiry, in its investigation of the wrongful incarceration of Donald Marshall, Jr., a young Micmac Indian, concluded that:
The criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The tragedy of the failure is compounded by evidence that this miscarriage of justice could-and should-have been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a Native (Hickman et al, 1989:1).
I )ifferential treatment has occurred not only on an individual basis, but is an institutionalized part of the operation of the criminal justice system. Aboriginal adult and young offenders face special disadvantages in dealing with the criminal justice system, including: language barriers; lack of knowledge of the non-Aboriginal criminal justice terminology, ideology, and procedures; unavailability of legal counsel; lack of informal community-based justice mechanisms (e.g. diversion programmes); lack of detention facilities separate from adults or in their home community; lack of alcohol and solvent abuse treatment programmes; lack of youth emergency shelters; lack of culturally-appropriate programmes in correctional facilities; and lack of cultural understanding and sensitivity by non-Aboriginal justice system members.
A review of the somewhat contradictory sentencing literature suggests that Aboriginal offenders are more likely to be incarcerated than non-Aboriginal offenders, but for shorter periods of time (LaPrairie, 1990). As well, adult Aboriginal
offenders are less likely than white offenders to get bail, to have access to defense counsel, to get probation, to be able to pay fines (and therefore must serve time in lieu), to have access to culturally relevant correctional programmes, to be released on parole, and to have access to after care services (Law Reform Commission, 1991). Aboriginal young offenders are less likely to be diverted from court and are less likely to be admitted to Alternative Measures programmes (Frideres, 1993). All things being equal, Aboriginal youth are more likely to be sentenced to custody and to spend longer times in custody for the same offences than non-Aboriginal youth (Cawsey, 1991a; Griffiths and Verdun-Jones, 1994). On the other hand, research on Aboriginal and non-Aboriginal juvenile dispositions in Manitoba found that legal factors, such as the number of criminal offences and prior record, had a more important role than extra-legal factors such as age, sex and race, in determining sentences (Kueneman et al, 1992). This reiterates the results of an earlier 1982 study (LaPrairie and Griffiths, 1982). In general, discovering the patterns of over-representation among Aboriginal young offenders is seriously hindered by lack of research (Griffiths and Verdun-Jones, 1994; Minore, 1992).
Despite these documented systemic problems in dealing with Aboriginal adult and young offenders, there are few Aboriginal peoples working in the criminal justice system (Frideres, 1993; Hamilton and Sinclair, 1991). Cawsey (1991b) found in Alberta, that between 1.7 and 1.8 % of all police were Aboriginal, 3.5% of correctional personnel were Aboriginal, and about 1% of Crown Prosecutors were Aboriginal. According to the Law Reform Commission of Canada (1991:5):
From the Aboriginal perspective, the criminal justice system is an alien one, imposed by the dominant white society. Wherever they turn or are shuttled throughout the system, Aboriginal offenders, victims or witnesses encounter a sea of white faces. Not surprisingly, they regard the system as deeply insensitive to their traditions and values. Many view it as unremittingly racist.
Because of the lack of Aboriginal personnel working within the criminal justice system, the federal and provincial governments have initiated a number of programmes to deal more effectively with Aboriginal offenders. These programmes include Native Awareness (cultural diversity) training for non-Aboriginal personnel, affirmative action to hire more Aboriginal personnel, and funding a number of First Nations-operated criminal justice initiatives that are adjuncts to the main system, such as Native courtworker programmes, justice of the peace programmes, and community-based correctional programmes. An alternative to adjunct programmes, and the alternative favored over-whelmingly by First Nations communities, is Aboriginal-controlled justice services. The development of self-determined Aboriginal justice programmes has also been supported by many government-appointed task forces and commissions (see Cawsey, 1991b for an
analysis of their reports).
Alberta, like many Canadian provinces and territories, has many adjunct, Indigenized' services as well as self-determined services. Indigenized services are controlled by the non-Aboriginal government by means of funding contracts, audits and other bureaucratic mechanisms, even though the services are operated and usually designed byAboriginal peoples (Havemann, et al, 1985). Many of the programmes are hindered in their attempts to incorporate traditionally-based Aboriginal processes and values by the need to, for example, fulfill bureaucratically-based operating standards and policies.
In Alberta, the number of young offender-oriented initiatives is increasing rapidly. First Nations communities are developing new programmes for youth ranging from child welfare to criminal justice. Native courtworkers from Native Counselling Services of Alberta (NCSA) provide information and support services in youth courts throughout the province (as well as in criminal and family courts). NCSA also operates Elders' visitation programmes to young offender (and adult) correctional facilities, and young offender custody homes. Specifically for young offenders, First Nations and other urban-based Indigenous organizations offer group homes, open custody facilities, probation supervision programmes, and crime prevention programmes based in recreational and cultural activities (Griffiths and Verdun-Jones, 1994).
Despite these services, First Nations communities still see Aboriginal young offenders as:
the primary victims of the system-cut adrift by it and removed from the community's support as well as from its spiritual and cultural tradition. Elders recount experiences of children taken from their communities at an early age who later emerge, hardened from the court and the correctional process and ultimately beyond the reach of even imaginative initiatives designed to promote rehabilitation. (Law Reform Commission, 1991: 6).
In an effort to keep Aboriginal young people in the community, Aboriginal communities designed and established the Youth Justice Committees.
Youth Justice Committees
Youth Justice Committees are in the vanguard of attempts to shift the young offenders system away from retributive justice and towards restorative justice. The first Committee was established in 1990 in Fort Chipewyan, a remote Aboriginal community, when local Elders expressed their frustration with young people being sent out of the community after committing offences. The judge suggested that
the young offender legislation of the time might allow them to operate as a community sentencing advisory body. The idea of the Committees spread to non-Aboriginal communities so that by June 2000, the number of Committees in the province had increased to 83 (six of which were not active). Of the 77 active organizations, 20 were primarily Aboriginal-operated. The provincial government Department of Justice 'designates' new Committees that meet certain criteria set by the government (such as having a written constitution). Some Committees operate without this official support
An ever-changing number of volunteers provides services in each community. Each community has a Committee of anywhere from 6 to 30 volunteers that form smaller groups known as 'sentencing panels' or 'sentencing circles' to hear cases recommended to them by the court. The term 'sentencing circle' as used by the Committees, is different from the term previously used in court and in the literature. Previous sentencing circles included all members of the court party (judge, prosecutor, police, attorney) as well as parents, victims, and other interested community members. With the Committees, the sentencing circle excludes members of the court party, unless the circle asks a police officer or probation officer, for example, to attend to provide information. The victim may or may not be there; parents or guardians have to be there. The Committees are comprised of respected community members who represent the ethnic make-up of the community so that, for example, in Aboriginal communities where there are Status and non-Status Indians (as defined by law), and Metis (individuals of mixed Aboriginal and European descent), all three groups will be represented on the Committee. Similarly in a community that is mixed Aboriginal and non-Aboriginal, there are representatives of both groups on the Committee. An important criterion for membership is caring about and wanting to help the young people in the community. Aboriginal Elders are represented on the Committees although other community leaders predominate. The Committees primarily serve young offenders, although some assist adults, and in some communities the Committees occasionally bypass the courts (with the blessings of the court and the police) to deal directly with disputes. More details on the structure and operation of the Committees are presented in the next section.
The Restorative Justice Paradigm and Youth Justice Committees
The primary goal of restorative justice programmes is to bring justice back into the community using a process that respects 'the feelings and humanity of both the victim and the offender' (Van Ness and Strong, 1997: 25). This means the empowerment of victims, the community and offenders (McCold, 1996: 97). The current criminal justice system operates on a retributive model that focuses on
upholding the authority of the state, deterring offenders, and punishing wrongdoing. Repairing the harm done to the victim and the community has become nearly irrelevant (Van Ness and Strong, 1997: 10).
The restorative model is based on a number of principles that vary greatly from the retributive, deterrent, protective principles of the adversarial system. Principles include that: the victims need to regain control of their lives, overcome a feeling of powerlessness and receive vindication; the community needs to restore its order, its members' confidence in their safety, and reassert common community values; offenders need to have 'contributing' injuries (such as alcohol or child sexual abuse) and injuries resulting from the crime healed (Van Ness, 1996: 23-4). In addition, victims and offenders need personal involvement in the process so that the offenders know who they owe restoration to and the victim can be re-empowered so that, for example, their fear of crime is reduced. (Hudson and Galaway, 1996).
The restorative justice model (McCold, 1997) can be summarized in three propositions: (1) crime is primarily a conflict between individuals (not between an individual and the state) resulting in injuries to victims, communities and offenders; (2) the aim of the criminal justice process should be to reconcile parties while repairing the injuries caused; and (3) the process should facilitate active participation by victims, offenders and their communities instead of being dominated by the state (Van Ness, 1996: 23). The goal of restorative justice is that, `the community seeks to restore peace between victims and offenders, and to reintegrate them fully into itself; the goals for victims can expressed as healing and for offenders as rehabilitation.' (Van Ness, 1996: 28). In general, the establishing of blame for past behaviour is less important than problem-solving for the future (Kennedy and Sacco, 1998: 206).
Victim-offender reconciliation programmes (VORPs), mediation and perhaps arbitration are the most common types of restorative justice programmes in North American non-Aboriginal societies. In these programmes trained mediators work to empower participants, promote dialogue between victims and offenders, and encourage mutual problem-solving (Van Ness, 1996: 24).
The Youth Justice Committees were originally established under the Young Offenders Act of 1985. Under Section 69 of the Young Offenders Act, the Committees could assist, unpaid, 'in any aspect of the administration of this Act or in any programmes or services for young offenders'. According to Alberta Justice guidelines, the functions of the Committees could include: operating as an alternative to the formal court process by making referrals to alternative measures; getting the views of victims of the offence; providing community support to offenders; providing recommendations on sentencing alternatives to youth court
judges where requested; providing opportunities for young offenders to take part in community service and fine option programmes; arranging for victim/ offender reconciliation; providing community supervision of young offenders; ensuring community resources for young offenders are used; and enhancing community awareness of youth crime. The Committees were continued under Section 164.4 of the Youth Criminal Justice Act of 2000. This Act gives more emphasis to the provision of Alternative Measures programmes than sentencing advisory bodies but still allows for them `to assist in any aspect of the administration of this Act or in any programmes or services for young persons' (Section 18.1), specifically `to give advice on...sentences...and reintegration plans' (Section 19.2). The Young Offenders Act 1985 and the Youth Criminal Justice Act 2000 both fit into a 'retributive justice' paradigm (Bazemore, 1996).
The Youth Justice Committees, on the other hand, despite their sanction by legislation and connections to the courts, clearly fit within a restorative justice paradigm. Their primary goals include: increasing community involvement in criminal justice administration; increasing community harmony by assisting offenders to 'hear; 'healing' the community; healing the victim; and decreasing recidivism. A criminal justice system member explained:
[They put] peer pressure on the individuals living in the community...the judge sits down and says 'You'll do this'. [then] gets on a plane and flies out of the community, and he's not there anymore; but when you deal with a group of Elders or [a] sentencing group, the next morning [the offender] gets up and walks down the street, the chances are good he's going to see somebody that sat on that committee... that is a much better sense of deterrence, or peer pressure, or even justice, because it lives with them a lot longer. (Interview with author, 1994)
Because each community has its unique combination of people and, concerns, the structure and operation of the groups vary widely. Each community decides who the Committee members are, how they are selected, how they carry out their duties, and what offenders are eligible. For example, some Committees will accept only first time offenders, whereas others will take only second or repeat offenders because they do not want to infringe on local Alternative Measures programmes. Some groups will consider only minor offences; others will accept indictable (felony) offences, even serious ones, depending on the circumstances of the offence. None of the Committees will deal with murder, manslaughter or serious sexual offences, although several have dealt with family violence and relatively minor sexual assault cases. Some will hear family court and child welfare matters. Several groups accepted adult offenders despite their lack of jurisdiction to do so. Alberta Justice is aware of this, but as a senior official said, how much do you
want to interfere with the good work that is happening?' Taking into consideration the eligibility criteria set by the local Committee, each case is assessed on its own merits, with the judge, or in some communities, the prosecutor, making the final decision as to which offenders are eligible. Some Committees will refuse to hear a case if a parent, guardian or other family member does not attend the hearing. The sentencing advisory Committees are being encouraged by Alberta Justice also to expand into `family conferencing' in which the victim must be present, and Alternative Measures programmes. There is some resistance by many Committees to this expansion because of the heavy increase in workload it would entail.
The Committee becomes part of the court process after the offender has been found guilty and a determination has been made by the judge that the offender might benefit from meeting with a sentencing panel. The hearing is held in private, and confidentiality for all parties is observed. Input is requested from the police, probation services, parents, and perhaps the school, the victim, and potential treatment agencies. The offender is asked to give his or her version of the events. The attendance of the victim is encouraged though not mandatory.
A description of one of the hearings observed by the author illustrates the procedures and ideology of the panels (keeping in mind that there is great variance among committees):
The hearing started with a prayer and was carried out in Cree, the first language of all present except the police officer who read out a police report on the matter and remained for the rest of the hearing. Information from probation services was read out by a courtworker, who also took notes. The panel members, who obviously knew the offender and his family, commented on efforts of other family members to remain sober, the important economic role the young man played in the family, his past misbehaviours, told him that they and other community members cared about him or he wouldn't be at the hearing, lectured him about his disrespect for older community members whom his driving frightened, and joked with him about a number of things including his possible sentence (` You will spend one year living with an old lady! Just kidding.'). His respect for the panel members was easy to see throughout the hearing. He was asked about his feelings about the recommended sentence and if he agreed with it. At the end of the hearing, each panel member gave the offender a hug at which point it was obvious that the young man was moved.
The sentencing options open to the Committees are broad within the limits set by the legislation and the power of the judge's veto. They include such 'traditional' sentences as probation, fines, restitution orders, community service orders and open and closed custody; however, sentencing panels have proved somewhat more innovative than this in the sentences they recommend. For example, sentences
have included: using community service orders or probation conditions to make offenders cut firewood or hunt for an Elder, mow grass for a local church, help a trapper build a cabin, give talks at the school about their experiences as a drunk driver and in treatment, and help prepare a feast for a traditional ceremony. Young offenders were not sentenced to take active part in spiritual ceremonies, but they might be sentenced to help in the preparations for the ceremonies, so that, if they became curious they would have the opportunity to take part. Sentencing panels or circles do not recommend incarceration except in cases where they must recommend open custody incarceration so that the offender can receive help in an alcohol treatment or other institution. Several respondents commented that the sentences of the circles tended to be more severe than the court might make in a similar case. This usually happens when the circle members think that the offender may benefit from a longer time period of supervision or treatment, and is only done with the agreement of the offender and all other participants. If the panel or circle feels that incarceration (not for purposes of treatment) is the best alternative for the offender, they will refer the case back to court and let the judge decide the period of incarceration. It should be noted that judges have only ignored the recommendations of a Committee on two occasions, and both times the judge's decision was over-ruled and the Committee's recommendations were up-held by a higher court.
The purpose of these sentence recommendations is not only that offender should `pay back' the community but also that the offender be exposed to people and processes that might help him or her 'heal'. One Committee member reported that the Committee would really like to recommend that more young offenders to be counselled by Elders but there were too few Elders in that community willing or able to take on this volunteer task. As an alternative, some Committee members become actively involved in the offender's sentence by, for example, providing supervision or counselling. Sentences are negotiated in that the offender, his or her family, the victim, and all other participants must agree that it is fair. If they do not, it is discussed until a new sentence is arrived at that all find equitable and appropriate.
Suggestions are also made to family members and victims about changes that they could make in their own lives so that they provide a better support for the offender. This frequently means going to alcohol treatment. The panel or circle often orders the offender to return to report on his or her progress, or they may check up informally on the offender.
This description clearly suggests that the Youth Justice Committees do not fit into a retribution paradigm, despite their association with the Provincial Courts. On the other hand, they are not exactly 'mediation' programmes, either. They try
to restore harmony between individuals, and between the individual and the community, but their primary purpose is to assist the court. They are restorative, however, because of the their emphasis on healing the offender through taking responsibility, treatment, and repairing damages to the victim and/or community. As well, they do not focus only on the offender; the healing of the community and the victim are also addressed.
Youth Justice Committees as Restorative Justice: ten potential issues
While there are many issues that arise in any discussion of restorative justice, only ten will be discussed here. Previous research has found these to be of particular interest in discussing Indigenous-operated restorative programmes (see Nielsen, 1999; Meyer, 1998). These are: the relationship between the retributive and the restorative justice systems, victim perceptions of justice, offender perceptions ofjustice, due process, community perceptions ofjustice, antagonism from criminal justice personnel, lack of programme resources, programme effectiveness in reducing incarceration and recidivism, mediator skills, and expanding clientele to include organizations, repeat offenders, and violent offenders.
Hudson and Galaway (1996: 11) raise the issue of the relationship between the two models ofjustice. They ask if the restorative justice system should be separate from or part of the criminal justice system and canvass arguments on both sides. The Youth Committees are part of the criminal justice system, by legislation and by function; however, it is interesting that many Aboriginal respondents, when interviewed, felt that the Committees could replace the criminal justice system for most young people. Before the new Act with its emphasis on Alternative Measures became law, some Committees operated at the pre-court diversion level. These Committees by-passed the court; some still do by working directly with the parents of truant children, for example. This was the course that some respondents from the police and other criminal justice organizations envisioned as the most desirable for Youth Justice Committees. Reasons given for preferring this process were that it saved the criminal justice system money by bypassing the court system, it saved the offender stress, and most importantly, it placed more responsibility in the hands of the community. This feeling among criminal justice members may have been one of the factors encouraging the inclusion of Alternative Measures in the Young Offenders Act. It gives more control to the criminal justice system. Legally, the Committees cannot operate separately from the criminal justice system; however, a few of them do and there was support for this before the new Act. Whether this support still remains, needs further investigation.
The second issue is victim perceptions of justice. The question is asked whether or not the victims feel that they are voluntarily participating in restorative justice programmes. Umbreit (1994) found that a small percentage of victims in his sample felt that they had been coerced into participating and thereby felt re-victimized. Wright (1996: 229) suggests that the victim knowing that the offender may otherwise be prosecuted or go to prison leads to feelings of pressure. Griffiths and Hamilton (1996: 187) point out that Aboriginal women and female adolescents are particularly vulnerable to pressure. Power structures within First Nations communities may also compromise the fair operation of restorative justice programmes for certain community members (Griffiths and Hamilton, 1996: 188).
Ashworth (1993) suggests that restorative justice programmes do not provide clear criteria for consistent settlements to the victim or to the community. It might be difficult for victims to get what they consider to be a just reparation since some offenders may not have the resources to make full reparation. Along the same line, he argues that there are few criteria for measuring harm done to the community and what would be fair reparations to it. Research by Umbreit (1994) found confirmation of one of these issues and introduced another. First, he found that some victims felt that the punishment given the offender was inadequate. Second, some victims were concerned that mediation lacked the authority to enforce completion of mediation agreements.
In theory, there should be voluntary participation of the victims and perhaps their family in the Youth Justice Committee hearings. The victim has a chance to express his or her feelings in a controlled environment. Since consensus by all participants on the sentencing recommendations is necessary before the procedure is over, the victim should be able to get whatever reparations he or she thinks is equitable. However, because victims do not have to attend the hearings, as their participation is completely voluntary, their absence means that they have to depend on the Committee members to represent their interests. In actuality very few victims attend the hearings. Some may submit a letter to the Committee or communicate their feelings though the probation officer's report, if there is one. Often the Committee members try to represent these feelings on behalf of the individual victim and especially of the community, to the offender. It is to the credit of the Committees that their sentencing recommendations often include victim-oriented tasks such as writing or personally apologizing to the victim, working for the victim to make up the cost of damaged goods or to replace goods, or performing some other task for the victim. Many of the sentences also contain provisions for the offender to pay back the community by performing community services of various kinds like painting bleachers, shoveling snow or gathering firewood for Elders, or assisting in the preparation of a ceremony.
Victim perception, therefore, is not a major issue, although the low number of victims who attend the panel despite being invited to do so, is. This may reflect victim discomfort with the process, a factor that needs to be looked at. Another issue is whether or not that the Committees can enforce their recommendations. Unless the Committee's recommendations are incorporated into the terms of probation, they are not enforceable, and new charges cannot be laid if the offender refuses to comply with non-probation enforced suggestions (this is not the case in Alternative Measures where refusal to comply results in the laying of charges). Suggestions made to the victim or family members are also not enforceable. This is one of the reasons for the emphasis on consensus about the sentencing recommendations. The issues here then, are not victim perception, but lack of victim attendance and non-enforceability of some recommendations.
Offender perceptions of justice are a third issue. Offenders may feel that pleading guilty (if necessary) and diversion from the system into a restorative justice programme will offer them a better chance, even though they might have had a valid defense against the charges (Wright, 1996: 229). Wright (1996) and Ashworth (1993) both point out that some victims may be more vindictive than others and make greater demands. Similarly, victims may discriminate on economic grounds, leading to inequity (Harland, 1996: 511). Umbreit (1994:105) reports that a small number of offenders felt that the punishment they received was too severe or out of proportion to the offence. At the opposite end of the spectrum, some victims of a serious offence may be satisfied with a symbolic form of reparation such as an apology. This is an issue of proportionality, the achievement of which is one of the aims of the criminal justice system though not central to restorative justice. Hudson and Galaway (1996: 13) point out that this question is really the result of confusing the retributive and the restorative models, since in the restorative model, `fairness is not uniformity but satisfaction.' This response applies equally well to Youth Justice Committees. The objectives of Committees are healing the offender and restoring the relationship between offender, victim and community. The offender is asked about his or her response to the recommendations of the Committee. In most cases, they voluntarily agree with the terms. If offenders cannot live with the arrangement, they can ask that their case go back to court. This is not, therefore, a major issue with the Youth Justice Committees.
Due process has been raised as a related issue. Ashworth (1993) suggests that there is a conflict between the victim's right to participate and the procedural rights of the offender in some kinds of restorative justice. He suggests that the victim might have undue influence, especially on the court process. This is particularly a concern in serious crimes. Due process is not really relevant to the Youth Justice Committees. The offender has the right to refuse participation and must agree to whatever plan is developed. If, for whatever reason, the offender is
not satisfied with the hearing process, he or she can ask that their case be moved back to the courts where they will have the protection of due process.
Community perceptions of justice is an issue because currently there is a political climate of 'get tough' on offenders. Restorative justice programmes may be seen as 'soft' by those with this kind of agenda (Harland, 1996: 510). On the other hand, research by McElrea, (1994) indicates (in New Zealand research) that on the whole, victims are not as vindictive as may be imagined and that most of them want to help `straighten out' the offender, especially if the offender is young. Research done in the late 1980s and early 1990s found public support for reparation, restitution and community service programmes as long as the victim agreed to participate. Even so, these programmes were not seen as suitable for violent or repeat offenders (Lee, 1996: 339-40).
Griffiths and Hamilton (1996: 188) suggest that not all Aboriginal communities in Canada may want to deal with serious offenders. Some communities practiced banishment for serious offences, repeat offenders, or in cases where the individual refused to abide by community-imposed sanctions. These communities may think of the Euro-based criminal justice system as the modern equivalent of removing the offender from the community.
Community support for the Youth Justice Committees seems quite high considering their rapid spread in both Aboriginal and non-Aboriginal communities. Victims that attend Youth Justice Committees are there because they want to help the offender. Also, as mentioned earlier, some Committee recommendations are actually tougher than those that might have been made by the court alone. The purpose of these longer sentences is to give the young offender more time and help in healing.
The next issue is antagonism from criminal justice personnel towards Youth Justice Committees. According to Marshall (1995), this arises mainly from the attempts of criminal justice personnel to use the new programmes to fill their own organizational needs. They sometimes impose restrictions that interfere in the operation of the restorative programme. Because the criminal justice system is more offender-oriented than victim- oriented, the restrictions most often adversely affect the interests of the victims. This is a highly relevant issue for the Youth Justice Committees. Research indicates that on the whole, there is a great deal of support for the Committees, however they did experience some resistance when they first started. Resistance existed particularly among 'some lawyers' who, respondents thought, might feel they were losing business since lawyers were not necessary to the operation of the Youth Justice Committee initiative and were, in fact, not allowed into the hearings. Some judges also were opposed to any kind of judicial advisory body. (Interviews with the author, 1994) A senior police respondent
suggested that while many prosecutors, defense counsel and police didn't actively oppose the Committees, they were also not ready to support them:
Some believe in it...but the rest are sitting back on the fence...some are participating because management has said you will participate...I personally don't believe that we will have firm believers totally in the programme for a long period of time. In fact, there will be a lot of credence put to any time that they fail, by the so-called nonbelievers. (Interview with the author, 1994)
The above concerns seem to be related to a confusion by criminal justice personnel about the difference between restorative and retributive goals and procedures, and to the acculturation of criminal justice personnel into Euro-based values about justice as retributive and its mechanisms. Because of the importance of good relationships between the Committees and other members of the criminal justice system, this antagonism or resistance was and still could be a very important issue for the Youth Justice Committees.
Lack of resources such as funding, expertise, and political will is also an issue for restorative justice. McElrea (1994) expresses the fear that restorative justice programmes may be adopted as a means of reducing the costs of courts and prisons without recognizing that communities need financial resources to properly operate these new programmes (see also Harland, 1996: 512). A related issue is the lack of human resources in the community. Griffiths and Hamilton (1996) raise the issue of the 'healthiness' of community members, leaders and others who play key roles in restorative programmes in Canadian Aboriginal communities. Because of the tragic impacts of colonialism, many Indigenous communities have social problems, such as widespread alcoholism, family violence and child abuse. Community members who act as mediators (or Committee members) will have to deal with their own personal issues before they can help others. A final resource needed by these programmes is political will (Harland, 1996: 515), which the current climate suggests is in short supply. Lack of resources is an important issue for the Youth Justice Committees. Committee members, by law, cannot be paid, although they are allowed to raise money for training, attending conferences, recognition ceremonies, administrative work, mileage expenses for Elders and so on, through community activities such as car washes and casino nights. Local Probation offices may provide some office supplies. The Committees can apply for small grants from Alberta Justice, Alberta Child Welfare, and private foundations. Some also get anonymous donations. On the other hand, there is a great deal of political will and few problems with finding stable, capable community members to act as Committee members.
The effectiveness of these programmes in reducing incarceration and recidivism
is another issue. Umbreit (1995) raises the issue that while restorative programme staff often tout these kinds of programmes as an alternative to prison, there is little evidence that these programmes decrease incarceration. Some research has found that mediation has contributed to reducing the length of sentences and changing the locale of the sentence served from prison to local jail. There is also some question of whether or not these programmes decrease recidivism. Umbreit (1994:117), for example, found a 'marginal but non-significant impact of the mediation process' among juveniles. He suggests that the mediation process may be over-shadowed by the contrasting influences of a dysfunctional family and criminal friends. However, in the Euro-based society there is, as Harland (1996: 511) states:
...the perception that it is not the business of the criminal justice system to try to right the underlying social and cultural wrongs that maintain and encourage the existence of stable and visible class of criminals is both deeply ingrained and a convenient excuse for its abject failure to reduce crime.
Restorative justice programmes may try to respond to the underlying causes of the crime and the needs of the parties involved, but they still suffer some restraints because of the wide-spread nature of narrow, retributive attitudes, and because true 'healing' of all parties is not a broadly accepted objective.
So far no evaluations have been done on the Youth Justice Committees. Anecdotal evidence suggests that their recidivism rate is low. None of the communities kept formal statistics of the results of the Committees, but one of the oldest committees reported that 8 of the 43 offenders they had dealt with in their first year of operation had reoffended, most of these after court and while waiting to see the sentencing panel or circle for the first time. Two of the inactive Committees mentioned earlier, are now inactive because the crime rate dropped so low in their communities. In several other communities, the Committees now have very few cases after initial busy periods. In Ft. Chipewyan, Northern Alberta, for example, the court used to meet twice a month for two days with full dockets. Now, they have court once a month with only three or four cases.
Mediator attitude and competence were a concern to small numbers of both victims and offenders (Umbreit, 1994). When mediators were unable to control the proceedings, it left either the victim or offender feeling re-victimized or victimized. Hudson and Galaway (1996, 3) warn that empowering the community will likely mean that the processes of restorative justice will have to be deprofessionalized', that is placed in the hands of non-professional community members, because [b]y their very nature, professions remove power from others and concentrate it in their own alleged area of expertise.' This is not an issue for Youth Justice
Committees. The Committees in and of themselves are a form of community empowerment. The community brings its presence into the process through the Committees, as well as learning more about the criminal justice system through serving on a Committee or through some Committees' community education activities. 'Professionalism' is an irrelevant concept. Members are chosen for their ability to care about young people and their knowledge of community resources and issues. If Committee members cannot act appropriately at a hearing, they are not asked to serve again. Information about the criminal justice system is available to them though the police, probation officers or Aboriginal courtworkers, if the Committee needs it.
Expanding clientele to include repeat and violent offenders can be an issue in restorative justice not only because of public resistance to 'going easy' on these offenders but because these kinds of cases need more time to prepare and work through (Marshall, 1995). While questions of the suitability of serious cases such as rape and aggravated assault have been raised, there is also evidence that as long as the victim is willing to participate, victim-offender mediation may be successful (McElrea, 1994). Very little research has been done on expanding restorative justice programmes to include organizations. The issue raised previously about resources to support programmes is also a concern here. It should be pointed out that there is also an opposite concern about 'widening the net' of social control to include offenders who, for example, might have had their charges dismissed (Hudson and Galaway, 1996: 12). This issue boils down to a question of which offences should be dealt with by restorative justice and which by the retributive system. For Youth Justice Committees, this is not really an issue. Widening the net is not likely since the young offender has already been found guilty of an offence and is in the process of being sentenced. Repeat offenders can be sent to a Committee if the court wishes and any offence can be dealt with, as long as the Committee is willing. Most Committees are not willing to take a case that requires incarceration. Some Committees will handle violent offenders if incarceration is not the only option available, and if the Committee thinks it is in the best interests of the community.
In summary, the Alberta Youth Justice Committees share two important experiences with other restorative justice programmes. These are antagonism from criminal justice personnel and lack of resources. The experiences of Youth Justice Committees and other restorative programmes overlap to some degree in relation to victim perception of the process and getting the victim to attend, and effectiveness in reducing incarceration and recidivism. However, since the Committees have not yet been evaluated their effectiveness cannot be established.
Issues that are more or less irrelevant to the Youth Justice Committees are: separation between the Committees and the criminal justice system, although the sovereignty aspirations of Aboriginal communities may eventually play a role in pushing for greater separation between the state system and an Aboriginal youth justice system; offender perceptions of the programme; due process; community perception of the programme; mediator attitude and competence; and expanding clientele.
The two shared issues of antagonism from criminal justice personnel and lack of resources may be a meeting ground for the Committees and other restorative programmes. The Committees have already overcome much of the antagonism they faced. They developed a variety of strategies specific to their own communities such as meeting with specific resistant personnel, using other local organizations to help them, recruiting certain kinds of community members, and emphasizing their role as 'assisting' the court. These strategies can be shared, and Committees can also learn from other restorative programmes. There has been a great deal of discussion about holding a regional Committee conference, but the expense of doing so has been an obstacle. Alberta Justice and some Committee members have made presentations to national conferences.
Lack of resources is an equally serious issue. This not only affects the efficient operation of the Committees and other restorative justice programmes but also means poorer services to their clients when, for example, treatment programmes are not available for referrals, or Elders cannot afford to take part in the programme because of costs. The Youth Justice Committees have legal restraints on them not faced by many other restorative justice programmes. They would have a lot to gain by sharing information with other organizations that have come up with innovative strategies for obtaining resources. There is little doubt that restorative justice programmes could benefit from sharing information with each other. It can only make them stronger.
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