Source: (1999) In Restorative juvenile justice: Repairing the harm of youth crime, ed. Gordon Bazemore and Lode Walgrave, 263-284. With an introduction by Gordon Bazemore and Lode Walgrave. Monsey, NY: Criminal Justice Press.
In this essay Van Ness addresses select legal issues relating to restorative justice. To begin, he sketches three principles elaborated by Schweigert concerning restorative justice and moral education: (1) restorative justice can bring communal and universal norms together in mutually reinforcing ways; (2) restorative justice processes create safe, neutral spaces for all parties to meet and work together; (3) restorative justice processes contribute to community moral education. These principles provide a starting point for discussion of commonly raised legal issues relating to restorative justice. The first principle encourages mutuality rather than either/or contrasts. The second highlights the “gatekeeperâ€? function that exists in law. The third assists with thinking about proportionality with respect to restorative justice. On these bases then, Van Ness examines the following legal issues: the problem of due process protections for the accused in restorative processes and sanctions; the problem of discretion and the principle of legality; and the problem of proportionality.
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