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Juvenile Delinquency

California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 27, 1999
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Lecture Notes on Exercise x4:
Restorative Justice in Juvenile Delinquency: Australia's Example

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  • Family Conferencing - The Idea

    Source materials for the following questions will be found on the Australian Institute of Criminology Web Site as PDF files. Read particularly Kate Warner's "Family group conferencing and the rights of the offender," because it deals with our primary concern here - do all validity claims get a good faith hearing?

    Once we have discussed these issues in class, try to summarize each in 25 words or so. Make each answer integral, so that I can read it without reference to the exercise or the question itself.

  • The questions for class discussion:

    1. Does family group conferencing sound like public discourse with negotiated conflict resolution?

      Sounds like a possibility for offender and victim to come together in a supportive environment to deal with issues and the underlying issues that caused the problem and to resolve them so that such behavior will not recur in the future. That is theoretically what happens in conflict resolution. All sides get to express themselves, misunderstandings can be worked out, and hopefully all can abide by some compromise that makes co-existence tolerable in the future.

    2. What facts would support family conferencing as public discourse?

      Family conferencing resembles public discourse in that the parties agree to come to the discourse table to resolve the problems. To the extent that all the validity claims are listened to in good faith, some of the affect will be dispelled. The frustration for both the offender and the victim should be relieved. For this to work, the professionals in charge need to recognize that not everyone is skilled at presenting validity claims, and so there must be a genuine effort to discover the source and pattern of the frustration, and help in communicating that to the rest of the community. When that attempt is successful, we should have narrative, successful listening in good faith, and less affect in general patterns of reaction.

      In other words, in well designed public discourse the pain that has been caused to the victim, will be recognized, and atonement and forgiveness will relate to the actual pain or loss caused. But also when there was pain that caused the offender to act so as to cause harm, that pain must also be addressed in good faith.

    3. What facts would support family conferencing as control privileging the empowered?

      Years ago a therapist wrote The Politics of Therapy. He was a New York prison therapist. He quit his job, and wrote the book to explain why. He could no longer urge prisoners towards adjustment to a society that harmed them. That was the politics he saw, the politics of the empowered demanding atonement from those who were oppressed. That is not a simple issue. Wasn't then; isn't now. There are some violent mean people in the world. There are also some people who appear violent and mean because they are unable to cope with the frustration and pain of a system which is auto-poietic, non-learning. That is, a system that won't listen to their cries of injustice.

      Now, I won't even reach the issue of the exist to which the injustice is real. Won't even discuss what "real" is. But where the perception of injustice exists, there will be pain and frustration, and if we are to live together in peace, the criminal justices system does have to reach all these issues.

      The statistics on race and poverty suggest that there are more poor and people of color in prison than befits their percentage of the population. That is certainly one good reason for the perception of injustice to exist. What we must understand is that the perceptions of all the bringers of validity claims are what count, not the "objective reality out there," to the extent that there is such a thing. W. I Thomas, "If men believe situations to be real, they are real in there consequences."

      Notice that one of the proceedings paper on the AIC site expresses concern for the "rights of the offender." It is in this context of perceptions that affect behavior that such rights must be considered. Are we coercing an offender to accept a community perspective when he/she truly perceives the situation differently? To the extent that we do, we are policing, not resolving. Perhaps it is a human right to cry out when we are wronged. Since Habermas says that every voice must have a good faith hearing, it is the responsibility of the system of law to see that that right to be heard is protected.

    4. What assurances are there of good faith hearings on both sides? Do we need such assurances?

      I think we need assurances. For to deny a good faith hearing in the interest of assuaging one perspective, is to let the problem fester. Practically, we must find approaches to violence and harm that work, that allow the wholeness of the community to be restored. Justice systems all over the world are trying. The Dine have been using restorative justice to this end for hundreds of years (reference to Mann and Zatz.) Yet how do we assure good faith? Good question.

    5. How would Lewis R. Gordon's approach in Bad Faith and Antiblack Racism, Humanities Press, Atlantic Highlands, N.J., 1995, fit into these issues?

      Gordon reminds us that Sartre speaks of two kinds of good faith:

      • Ignorant good faith

        "[B}elieving what one believes." (Gordon, at p. 56) Gordon describes this as open to bad faith, for if one insists on what one believes in as "true," and refuses to hear evidence that might prove one wrong, then one has made that decision to shut out evidence in the interest of what one believes. Quine suggests that good faith requires one to admit evidence, even when it is against what one believes. Essentially that is a form of bad faith, of lying to oneself, of protecting oneself from hearing and seeing other perspectives..

      • Authentic good faith

        The form of good faith that acknowledges that humans must tolerate some ambiguity, for there are things we cannot know. Good faith requires that we remain open to evidence that will point new ways of understanding as we learn more. Authentic good faith carries with it always the anguish of knowing that certainty is beyond our grasp. The ultimate questions must be tentatively answered. Would it be better to impose the community's perception on all offenders? Or must we remain open to hearing that somewhere sometime the offender may provide new understanding about our world and about our relationships within that world? Maybe the world really is round. Maybe the earth really does revolve around the sun. Maybe the neutrinos do account for the dark matter.

        Gordon sees the white perception of the black as a bad faith denial of the facticity of racism. He sees racism as a denial of any choices being made in how we treat people. Things just are, because we believe they are, and we refuse to any evidence that they are not because we believe that they are. This is a terrible over-simplification of Gordon's well though out and very specific explanations of antiiblack racism. I suspect one could apply the principles with other colors, but perhaps it is really a more profound denial in the case of blacks. His book is well worth reading.