Within or Outside the System? Restorative Justice Attempts and the Penal System

Source: (2003) In, Elmar Weitekamp and Hans-Jurgen Kerner, eds. Restorative Justice in Context: International Practice and Directions.Devon, UK and Portland Oregon: Willan Publishing. Pp. 272-284.

TOA is an acronym of a term that translates into offender-victim balancing, which means both settlement and reconciliation. TOA is and can only be an offer to victims and offenders/the accused to find, with the help of a neutral mediator, a consensual solution of the conflict that led to or came out of the criminal act. There are several provisions in the German juvenile and criminal code that make it possible to consider victim-offender reconciliation within judicial decisionmaking. The number and content of the provisions seem to provide an ideal basis for a substantial use of victim-offender reconciliation within the criminal justice system. But the inherent nature of criminal law gives victim-offender reconciliation almost no chance of becoming a hopeful alternative to punishment-oriented policies. Victim-offender reconciliation is being used for the treatment of minor offenses. TOA programs are not being used in great numbers. The TOA program was introduced into the juvenile criminal code as a judicial “educationalâ€? measure, but this is contradictory. It seems to be a hopeless attempt to establish acceptance for victim-offender reconciliation within the criminal justice system without adaptation and co-optation. The practical experience with the TOA shows that victim-offender reconciliation is not the only or ideal way, but that on a continuum of possible steps in the treatments of conflicts, it is one possible area of use. Such a dispute-resolution culture cannot replace the judicial system totally, but the parallel system of mediation can fill a gap that exists between the self-organized regulating mechanism in the population and the judicial system. Abstract courtesy of National Criminal Justice Reference Service, www.ncjrs.org.