meet Macbeth and Banquo to lead them on to their downfall chant the theme of their existence: “Fair is foul, and foul is fair: / Hover through the
fog and filthy air.” Act I, i, 12-13. 38
39
Frontline: The Plea, supra note 27. Id.
40 Albert Aschuler, Personal Failure, Institutional Failure, and the Sixth Amendment, 14 NYU Rev.
L. & Social Change 149 (1986). 41
Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, N.Y. Times, April 23, 2008 (citing a study done by the International Center
for Prison Studies at King’s College London). 42
I also hope the legislature might reexamine the basis for and wisdom behind 24 V.S.A. § 1967. See Note 21 above. If adopted in 2000, 24 V.S.A. § 1967 would have made over four thou- sand charges non-referable to a community jus- tice center (calculation based on the Vermont Center for Justice Research data provided to the
author, supra note 35). 43
Bruce Archibald & Jennifer Llewellyn, The Challenges of Institutionalizing Comprehensive Restorative Justice: Theory and Practice in Nova
Scotia, 29 Dalhousie L.J. 297 (2006). 44
Kathryn J. Fox, Circles of Support and Ac- countability, Qualitative Evaluation Final Report, Vt. Dept. Corrections, at
http://www.doc.state.
vt.us/about/reports/circles-of-support-account-
ability-final-report /view. 45
Arkansas allows its department of education
to research which school districts are current- ly implementing restorative justice disciplinary strategies. Ark. Code § 6-18-515. California’s Pe- nal Code allows for restorative justice for victims of hate crimes (Ca. Pen. Code § 422.86 (a)(3)) and for restorative justice programs for “communi- ty-based” punishments to reduce recidivism. Its education code allows elementary and second- ary school students to participate in a restorative justice program as a corrective measure instead of suspension. Ca. Educ. Code § 48900.5 (b)(6). Colorado provides statutory authority for a wide range of restorative justice practices in address- ing criminal behaviors. Those practices empha- size repairing the harm caused to victims and the community by offenses. They include victim-ini- tiated victim-offender conferences, family group conferences, circles, community conferences, and other similar victim-centered practices. They are facilitated meetings attended voluntarily by the victim or victim’s representatives, the victim’s supporters, the offender, and the offender’s sup- porters and may include community members. These practices may be used in addition to any other conditions, consequences, or sentence im- posed by the court. C.R.S § 18-1-901. Also, in Colorado, under Title 19 (“Children’s Code”), at the first appearance before the court after the filing of a petition, the juvenile and his or her parents, guardian, or other legal custodian shall be advised by the court of their constitutional and legal rights as set forth in rule 3 of the Colo- rado Rules of Juvenile Procedure. Such advise- ment shall include the possibility of restorative justice practices, including victim-offender con- ferences if applicable. The advisement regarding restorative justice practices does not establish any right to restorative justice practices on be- half of the juvenile, and failure to provide an ad- visement regarding restorative justice practices does not constitute any legal error by the court. C.R.S § 19-2-706 (1). Florida allows its state at- torney to establish restorative justice boards that consist of five volunteer members, of which two are appointed by the state attorney, two are ap- pointed by the public defender, and one is ap- pointed by the chief judge of the circuit. The board has jurisdiction to hear all matters involv- ing first-time, nonviolent juvenile offenders who are alleged to have committed a delinquent act
www.vtbar.org
within the geographical area covered by the board. FL § 985.155. Hawaii allows for participa- tion in restorative justice programs for juveniles (HRS § 571-31.4 (b)(11)) and is considering re- storative justice practices for adult offender re- entry programs (HRS § 353H-31(26)(C)). Illinois has one statute that mandates that the Depart- ment of Juvenile Justice shall embrace the legis- lative policy of the State to promote the philos- ophy of balanced and restorative justice.” 730 ILCS 5/3-2.5-5. Kansas allows district attorneys to refer juveniles to restorative justice centers to avoid prosecution. K.S.A. § 38-2346(a)(1). Lou- isiana statutorily encourages alternatives to ju- venile incarceration via programs that encour- age “the principles and practices of balanced and restorative justice.” La. R.S. § 46:2610 (C) (9). Maine mandates that the duties of the Of- fice of Victim Services shall include assisting vic- tims with obtaining victim compensation, resti- tution, and other benefits of restorative justice. 34-A MRSA § 1214 (3)(F). Minnesota’s statutorily defined restorative justice programs may desig- nate appropriate sanctions for charged offend- ers. Minn. Stat. § 611A.775. Minnesota also al- lows first-time juvenile offenders to have charges dismissed if they successfully complete a restor- ative justice program. Minn. Stat. § 609.092(a). Missouri allows its department of corrections to establish programs of restorative justice within the department’s correctional centers. RsMo § 217.440. It also allows community corrections programs to operate community-based restor- ative justice projects. RSMo § 217.777(2). With persons found in contempt for failure to pay child support, Mississipi allows courts to re- fer them to a “restorative justice center or pro- gram.” Miss. Stat. § 9-1-17. Montana has estab- lished by statute an Office of Restorative Justice in its Department of Justice to do the following: promote the use of restorative justice through- out the state; provide technical assistance to ju- risdictions and organizations interested in imple- menting the principles of restorative justice; and to bring additional resources to Montana com- munities for restorative justice programs. MCA § 2-15-2013. The intent of the legislation is to divert appropriate offenders who are at low risk for violence from incarceration to community programs based on restorative justice and to di- vert funds from the department of corrections to the department of justice to support an of- fice of restorative justice and to support com- munity programs based on restorative justice. MCA § 2-15-2012. New Hampshire accords vic- tims of crime the right to access to restorative justice programs, including victim-initiated vic- tim-offender dialogue programs offered through the Department of Corrections. NHRS 21-M:8- k (2)(v) Rights of Crime Victims. New Hampshire also has court approved diversion programs that are community based alternatives to the formal court process. These programs “integrate[] re- storative justice practices, promote[] positive youth development, and reduce[] juvenile crime and recidivism.” NHRS 169-B:2 (IV)(b). New Mexico opens a narrow window onto the field of restorative practices, allowing “restorative justice measures” to be used only as an “ap- propriate measure[] to discipline a law enforce- ment officer … when it is determined that the law enforcement officer violated [a] provision[] of [its] Prohibition of Profiling Practices Act.” NMS § 29-21-3 (B)(2). Pennsylvania has creat- ed an “Office for Safe Schools” that “is autho- rized to make targeted grants to school entities to fund programs which address school violence, including … restorative justice strategies.” PA § 13-1302-A (c)(1); also, under Pennsylvania’s Ju- venile Act by Act 33 of Special Session Number 1 of 1995, the philosophy of Balanced and Re-
THE VERMONT BAR JOURNAL • WINTER 2014
storative Justice (BARJ) serves as the foundation for the juvenile justice system in Pennsylvania, which directly supports the purpose/mission of the juvenile justice system as stated in the Juve- nile Act. In Washington State, beginning in July of this year, a court diversion unit may refer a juvenile to a restorative justice program. RCW 13.40.080 (11). Wisconsin’s Office of Justice As- sistance may make grants to counties to estab- lish and operate programs “based on principles of restorative justice, that provide alternatives to prosecution and incarceration for criminal of- fenders who abuse alcohol or other drugs.” Wis. Stat. § 16.964 (12)(b). Finally, under the United States Code, the federal government has au- thorized the U.S. Attorney General to provide grants to states “or a unit of local government” for the purpose of strengthening the juvenile justice system, including “establishing and main- taining restorative justice programs.” These pro- grams emphasize “the moral accountability of an offender toward the victim and the affected community and may include community repara- tions boards, restitution (in the form of monetary payment or service to the victim or, where no victim can be identified, service to the affected community), and mediation between victim and offender.” 42 U.S.C. § 3796ee. The federal gov- ernment also allows a school resource officer to train students in restorative justice. 20 U.S.C. §
7161 (11)(C). 46
Restorative Justice, Responsive Regulation & Complex Problems, at
http://www.uvm.edu / conferences/restorativejustice.
27
Restorative Justice
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