June 30, 2020

Law, Justice, and Citizenship in the Twenty First Century

João Pedroso

Restorative Justice presents itself as a resolution proposal for criminal conflicts that entails the redefinition of the role of the actors traditionally affected by crime (offender, victim and community). Using practices focused in the dialogue between those actors, distinguishes for displacing punishment and the suffering (as expressions of the traditional criminal paradigm, legitimized by the sentence imputation) replacing it for the choice, in a consensus manner, of non-sanctioned measures driven to the satisfaction of their needs through damage compensation. The arisen of the theme associates itself to the (theoretical-practical) movements, that have challenged the functioning of the punitive system, particularly the necessity/utility of the prison sentence in the face of the hyper mass incarceration ("criminal abolitionisms"), the socio-economics' selectivity regarding the system's custom ("critical criminologies") and the instrumental treatment given to the victims in the course of the proceeding and their demands' detachments ("vitimologies"). Through the construction of the restorative justice field and the definition of its foundations - concepts, principles, values and practical tools used to overcome crime by dialogue - this study aims to understand the relations established by this model (and the spaces it inhabits) with the traditional criminal justice model from the ground efforts. Combining theory and practice, we chose two cases in which the institutionalisation processes of restorative justice practices are different (because made from top-down and bottom-up perspectives) and developed by different key players. In the first case, the creation of the victim-offender mediation legal system for adults in Portugal is foreseen in the Law n. 21/2007, July 12th, entailing different actors functioning as well in the implementation/structuring of the public system(Legislative and Executive powers), as in its enforceability/execution (responsibility of the Public Prosecution Office and the Conflict Mediator). On the other hand, in Brazil, although the absence of a regulatory legislation on the subject, the practices multiply themselves in the field - forcing to choose four different circular processes' programs/projects developed in the southern part of the country - predominantly carried out by Judiciary power's actors. Facing the complexity of the subject, we used a mixed methodology to apprehend, qualitatively, the dynamics of production of restorative justice throughout semi structured interviews addressed to the key players; considering the quantitative analysis, we had access the inquiries forwarded the mediation system by the Public Prosecution Office in Porto, aiming to characterize and grasp the difficulties faced by criminal mediation in Portugal. Mobilizing the learnings from the study of both those cases, we were able to identify that in the criminal conflict's administration field restorative justice tends to become a dependant model, inserted in the traditional justice dynamics that, because co-opted by the logic if that system, can expand the punitive control over the community.

Keywords: restorative justice, criminal justice, institutionalization, protagonists, restorative practices