Settling criminal conflicts outside the courts: Restorative justice programs in Israel

Guest Column

Settling criminal conflicts outside the courts: Restorative justice programs in Israel

Inside the Supreme Court building, Israel. (Photo: Footballkickit/Wikipedia; cropped.) CC BY- 3.0.

Associate Professor of the Hebrew University of Jerusalem's School of Social Work and former Israel Institute Fellow at UCLA Uri Yanay writes about the innovative technique Israeli courts are using to address criminal cases efficiently and in a way that respects the victim - and offender.

In Israel, we found that safe and respectful restorative justice conferencing is extremely powerful for both the crime victim and the person who harmed her/him. Most crime victims claim that after attending such a conference, they no longer feel like victims. Their sense of “personal justice” was satisfied.

UCLA Younes and Soraya Nazarian Center for Israel Studies, June 12, 2017 - On February 9th, 2017, Israeli District Judge Ron Shapiro endorsed an agreement that was voluntarily signed between a criminal offender and her crime victim (Case 43978/10/16 Haifa District Court).

After the defendant, facing a judge, had initially accepted responsibility for stealing money from her employer, the judge had suggested the defendant and her crime victim voluntarily meet to try to correct the error, settle their criminal conflict and reach a “just” agreement. This "restorative justice" process was convened by a trained moderator - a qualified social worker serving as an adult probation officer - under the District Court approval.

Indeed, the Court accepted their agreement as its verdict and the served to end the criminal case. The decision by the court to sign off on this arrangement reflects a growing acceptance of restorative justice conferencing in settling criminal disputes outside the court in Israel.

A Recent Trend

In recent years, Israeli courts have begun to divert more criminal cases to restorative justice programs as in the case above, encouraging criminal offenders and their victims to meet in an attempt to discuss their criminal conflict, reach an agreement and settle their dispute outside the court.

Traditionally, in Israel – like in all Western, democratic countries – after a crime, the victim is expected to report the crime to the police. State authorities are supposed to apprehend the offender and try the individual in court. Unless called to testify, the crime victim is not part of the process, s/he has absolutely no voice or standing there.

But according to sociologist and criminologist Nils Christie (1977), any conflict – and especially criminal conflicts – belong to the people involved: the offender and the crime victim. The rationale behind restorative justice programs is that justice should be reached by the “real” owners of the conflict. And if together they can settle their conflict, it might be “fairer,” cheaper, faster and more “just” than an anonymous judge trying the case and reaching an arbitrary court decision, based on claims made by detached, paid lawyers

Aware of the shortcomings in the traditional criminal justice system, Israel adopted restorative justice processes about 25 years ago. They were initially demonstrated, tested and implemented by the Youth Criminal Court in Beer Sheba. A youth was caught shoplifting and he and his parents (his legal guardians) accepted responsibility for that act and expressed remorse for what he did.

The probation officer who dealt with the case - and all probation officers in Israel are qualified social workers - had read criminologist John Braithwaite’s book, Crime, Shame and Reintegration (1989) on addressing criminal behavior. The probation officer suggested bringing the young offender, his parents and the crime victim together in an attempt to “do justice.”

Beer Sheba police, prosecutors and the court agreed, and the probation officer moderated the conferencing, which proved highly significant for the youth, his parents and the crime victim. Together they reached an agreement to settle the criminal conflict and the Youth Court endorsed the agreement as its verdict.

Restorative Justice in Israel

The Beer Sheba story and the victim offender mediation (VOM) process of "restorative justice conferencing" (Braithwaite, 2002) utilized in the case became news. Its educational merit and the nature of the process encouraged prosecutors and Youth Courts to divert at first “soft” (misdemeanor) cases, but later even serious (felony) criminal cases to the restorative justice process. As said, these programs were arranged and moderated by qualified, highly trained social workers who serve as probation officers.

Learning from the Youth Criminal Courts experience, adult courts in Israel slowly adopted the restorative justice option too – if the defendant accepted responsibility for the crime committed. Research shows that more Israeli judges are now ready to divert even more serious criminal cases to a restorative justice process than in the past (Yanay and Tauber, 2015). This acceptance has led to an increasing number of criminal offenders willing to admit their wrongdoing in court and ask the judge to divert their case to the restorative justice route. Hence, today in Israel, restorative justice processes indirectly reduce some of the work load in criminal courts. The fact that lawyers are not part of the process also makes this alternative cheaper, faster and more “just” to all concerned.

Despite initial reluctance among crime victims to meet and talk to their offender, years of experience proved that crime victims are much better off if they meet the person who harmed them and (openly and safely) discuss the pain they have suffered and the loss(es) that they and their family incurred as a result of that crime.

Moreover, while the victim’s alternative of course is to ignore their case or go to court - where they will often hear a distorted, biased version of their case by the perpetrator or more likely, by her/his lawyers - if the offender asks forgiveness, s/he will address it to the Bench rather than to the person whom they harmed. By contrast, in a restorative justice conference, the offender will naturally address her/his victim and ask their forgiveness. This, by itself is a significant, healing gesture.

The Process

Once diverted, a “conference” must be well prepared by the moderators. Following separate meetings with the offender and the crime victim, and selecting two or three “supporters” each to accompany them to the conference, an agreed place and time for the meeting is set.

The conference itself must be safe, respectful and focused on the crime only. In Israel, it is usually the offender who begins the conference by telling his/her version of what happened on that day. The crime victim and his supporters listen carefully. When the offender finishes, the victim clearly (and emotionally) highlights the pain, suffering and expenses that followed.

Unlike criminal court sessions where the criminal code is at the center of discussion, restorative justice focus on what a person did to a fellow person. The Criminal Law is not at the center of the discussion. The respectful atmosphere of the Conference, the fact that both “partners” are accompanied by close supporters makes even an offender understand, sometime for the first time, that beyond breaking the law, s/he really, significantly harmed another person.

If well prepared, the offender will offer reimbursement of the costs the victim incurred and may suggest performing community service to show his/her remorse and above all, personally ask the crime victim for her/his forgiveness. The victims would have never heard this in court.

If the conference ends with an agreement signed by the victim and offender, the court will review that agreement. It may accept and endorse the agreement as its verdict. However, the court may add other penalties (such as fines or even conditional sentencing) to the agreement, if the judge finds suitable.

Successes

In Israel, we found that a safe and respectful restorative justice conferencing is extremely powerful for both the crime victim and the person who harmed her/him. Most crime victims claim that after attending such a conference, they no longer feel like victims. Their sense of “personal justice” was satisfied.

Furthermore, Braithwaite (ibid) argues that even if the offender has initially “minimal” shame, listening to the harm s/he caused to a fellow person will rekindle these residues of shame into “re-integrative shaming” process that may prevent further criminal activities by that offender. Evidence supports the correlation between this treatment and the successful reintegration of offenders into society and reducing reoffending.

And both crime victims and offenders who underwent restorative justice conferencing claim that settling their criminal conflict outside the court opened a new chapter in their lives. Both feel that justice was done. And in fact, they did it: respectfully, relatively fast and inexpensively.

Pursuing restorative justice practices in Israel, in both Juvenile and Adult courts is an interesting step. The fact that a District Court accepted an agreement signed by an offender and her victim may reflect a growing acceptance of restorative justice conferencing in settling disputes outside the court. The different benefits of the process were described here, but as a new practice it should be further and more deeply investigated to evaluate its short and long term outcomes.

For more information, please write to Professor Yanay at uri.yanay@mail.huji.ac.il


References:

Braithwaite, J. (2002). Crime, Shame and Reintegration. New York, Cambridge University press.

Christie, N. (1977) Conflict as Property British Journal of Criminology, 17 (1) 1-23.

Yanay, U and Tauber, D. (2015). An Evaluation of the Victim Offender Mediation Program by the Adult Probation Services in Israel - A Research Report. Jerusalem, The Hebrew University of Jerusalem, The Paul Baerwald School of Social Work and Social Welfare. The State of Israel, the Ministry of Welfare and Social Services, The Research Department and the Adult Probation Services. (In Hebrew).

Yanay, U & Gal, T. (eds.) (2016). From Wrongdoing to Righting the Wrong: Restorative Justice and Restorative Discourse in Israel, Jerusalem, Magnes Press. (In Hebrew).