Cops in Heaven

Say he polices the yard.

Say he notes everything out of order.

He will see the man with M.S.

In the motorized chair by the crosswalk

The curb too high for the wheels, where the water from the lush storm pools

By the side of the road.

He will see what doesn’t belong in Heaven.

Say he swings the car around, speaking into the radio as he arrives.

He says:

I’ve got a white male here in his late forties, early fifties

in pain all the time.

His sleep and breathing have both made deals.

He presents as if he is accustomed to it

as though it were in his blink, his bones.

 

The man looks up as the cop arrives.

He responds to the pepper spray of deep and thoughtful questions.

 

Pain drives with me in my wheelchair on the highway

It is as ponderous and committed as an elevator door

Closing.  My sigh does nothing

to ease it, but gives it a song to sing

Similar to the creek’s voice under the ice,

breaking.

 

The cop replies, kindness wrapped in broken down leather shoe intuition:

 

Sir, you don’t seem to notice

that pain you were just rolling down gold streets with—

that’s  cordoned you off from friend, relatives,

From the phone, from even being able to say, hey, lend me a hand?

because it’s a one-person exclusive venue,

don’t you know.

If you are bent from it, it’s been so long

since you’ve straightened up

you don’t even see the glances from worried angels.

You haven’t had an entwined conversation

for a long time. 

 

The man can’t leave.  It’s a cop.

But he is just belligerent enough to whine:

But who needs friends, relatives, phone calls,

good posture, worry-free looks from passersby, or angelic peace?

Everything breaks.  People disappoint. We all eventually go.

 

The cop breaks up the monologue with a billy stick finality:

Your perspective is one from the hollow point at your throat,

where the bones knit;

Your speaking-spot, for several years.  You miss you

Even though you don’t have the resting-spot or the schedule

Or the inclination to get to that.

Hey, Mister, he concludes.  You’re missing where you are.

 

Honoring Article 12 of the Conventions on the Rights of the Child with Restorative Justice

Honoring Article 12 of the Convention on the Rights of the Child with Restorative Justice [1]

By Amy D’Amico

Introduction

I.

From November 2008 through June of 2009, I was trained by an organization called Partners in Restorative Initiatives in Rochester, NY, and took part in a diversion program to the adversarial criminal justice system called Community Conferencing.[2]  A “Community Conference” is a type of Restorative Justice used by the courts in NYS pursuant to a law originally enacted to divert defendants to Drug Court.[3]  This alternative to the criminal justice system exists for those defendants who are interested and are willing to claim guilt (unofficially) to the crime that took place.

The Community Conference entails a Circle in which an Agreement is conceived of that will “repair the harm” created by the crime that took place.  Circle participants include a Conference facilitator, an offender and his supporter, a victim and his supporter, and community members who are stakeholders in the event which culminated in criminal charges against the offender.  I was skeptical of Community Conferences, but interested, for through earning a Criminal Justice degree at Rochester Institute of Technology, I had learned much about the adversarial system and found it wanting.  It seemed from my classes and from my internship while observing the Hon. Joseph D. Valentino’s courtroom in Monroe County Supreme Court that most criminal charges resulted in plea bargains; that they were always contingent on guilty pleas; that defendants rarely had the chance to express feelings of remorse or were given a chance to make amends to those harmed; that victims had no chance to express how they were impacted; and that the community at large was fundamentally disconnected from ownership of the problems underlying crime.  With this frame of mind, I began to learn about Restorative Justice. It begins in the criminal justice system when a case is diverted from the criminal court calendar into a Community Conference.  This process seems to correct some of the weaknesses of the adversarial model.  Most especially, it gives people a voice to explain what happened, and they come to an agreement as to what happens next.  Seldom is restorative justice used for the most srious crimes, but there are exceptions.  (See http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a-role-in-criminal-justice.html?smid=pl-share for an example.)

For children, an ability to express themselves when involved in a crime is particularly powerful.  Restorative Justice is harmonious with Article 12 of the UN Convention on the Rights of the Child (CRC).[4]

II.

The CRC was opened for signature and ratification by member states of the United Nations in 1989.[5]  By doing so, the international community “committed itself to a code of binding obligations towards its children.  .  . and [put] children’s rights at the cutting edge of the global struggle for human rights.”[6]  One of the four Guiding Principles of the CRC is Article 12, “Respect for the Views of the Child.”[7]  Article 12 will be discussed as it relates to children’s voices in judicial proceedings throughout the world.

The U.S. is the sole country that has not ratified the CRC.[8]  This does not include Somalia which had no government capable of ratification at that time.[9]  As a solitary holdout, it is difficult to know what the U.S. intends regarding the Articles of the CRC, including Article 12, “Respect for the Views of the Child.”[10]  On the one hand, failure to ratify seems a kind of exceptionalism; as if the U.S. was wholly separate and distinct from the international community and immune to its potential for guidance on domestic law.[11]  On the other hand, the child rights movement in some ways began in the U.S.[12]  Furthermore, in terms of civil rights, labor standards, child support, and laws regarding age of legal consent to sex, the U.S. is sensitive to child rights.[13]

This paper will explore Article 12 of the CRC.  It will then discuss Restorative Justice, both domestically in the U.S. and internationally, in the context of children’s right to be heard in judicial proceedings.  It will consider the power of this process to “repair the harm” done to children in the judicial setting who are normally not given a voice in court.

 

PART I          ARTICLE 12 – RESPECT FOR THE VIEWS OF THE CHILD

What are the major elements of Article 12 and how is Restorative Justice consonant with them?  Article 12 contains two parts:  “State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”[14]  The second part reads, “For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceeding affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”[15]

Restorative Justice in the context of the text, “who is capable of forming his own views” and “in accordance with the age and maturity of the child”

An important clause of Article 12 is the requirement that the child be “capable of forming his own views” and similarly that the child’s age and maturity be given due weight. This requirement can be found in Restorative Justice’s requirement that a pre-conference take place prior to any participant interaction.  During a pre-conference meeting with potential participants, the Community Conference is explained, and participants sign a consent form in order to go forward.  Consent allows a person to understand that the process will definitely call one party “the offender,” the other “the victim,” and attempt through a shared experience of communication to repair the harm that has occurred.  If parties are unwilling to accept responsibility for their part at this phase, or if the facilitator feels they are unsuited for a Community Conference for some other reason, including incapacity of offenders or victims, the Conference does not go forward.  The facilitator thus acts consistent with that language of Article 12 which requires the child be heard “who is capable of forming his own views” and that requirement that the proceeding be in accordance with “the age and maturity of the child.”  If, for example, the offender were very young, he might be deemed incapable of forming his own view in regard the criminal event.[16]

 

The usual options in the U.S. for children to be heard “either directly or through a representative”

The adversarial system of justice in the U.S. pits parties against each other, and when a child is involved, that child’s voice is often lost altogether.[17]  Typically, in courtrooms in the U.S., in custody matters at least, there is no requirement to hear the child.[18]  In custody procedures, many states do not allow children to testify, or even take into account what they want, but instead rely on a “best interests of the child” model.[19]  Note that the “best interest of the child” model in the U.S. is not the same thing as the CRC’s Article 3 “Best Interest of the Child.”  Instead, in the U.S., the phrase refers to a way of treating children in custody battles that relies on what the child’s attorney believes is best for the child, even in cases where that opinion is directly opposite to what the child actually expresses to her attorney.[20]  In the U.S. there are three types of attorneys for children, explains Melissa Breger, Professor at Law at Albany Law School at Union University.[21]  She writes, “The three most prominent models in the United States describing the role of the child‘s attorney in child welfare proceedings are: (1) the true advocacy/counsel role, also known as the ―expressed interests/wishes model; (2) a ―best interests or guardian ad litem (“GAL”) role; (3) a hybrid role melding of the two.”  Breger argues, “While the CRC does not explicitly posit a particular paradigm for the attorney for the child. . .  it is most aligned with a true advocacy approach.”[22]

Breger explores the idea that direct representation– although part of an adversarial model– provides a voice for the child that is in tune with the language giving a voice to the child in judicial proceedings “through a representative.”[23]  The attorney is that representative, she argues.[24]  The attorney finds out what the child wants, and then transmits that information to the court.  Even though this is the ideal, “Experienced attorneys acknowledge, however, that even within a direct representation model there is an inevitable counseling role for the attorney to play to help the child client see what is in the child’s best interests, particularly in the long term.”  One commentator adds, “This modeling and counseling approach [is] beneficial for both attorneys and clients.  In addition to holding the potential to create a more satisfying legal practice, an attorney’s reparative mindset would help curb some of the hateful tendencies of familial disputants.” [25]  As lofty as this goal is, the child’s voice is not being respected if the attorney is guiding the child into saying what the attorney thinks is most appropriate.  If Restorative Justice were used instead, the resulting Community Conference would include children.  And, the child would have a supporter on hand: perhaps an attorney for the child, or perhaps an older sibling who understood his sister’s point of view very well, and who might be more equipped to communicate that point of view to the group.  In this way, the process respects the child’s voice both directly and through a representative.

 

PART II         RESTORATIVE JUSTICE

In the United States, disrespect for the voice of the child is both strident—via failure to ratify the CRC—and more subtle.  The adversarial model does allow children to testify, at times.[26]  But more often, as victims, as offenders, or as stakeholders in juvenile justice situations, children in the U.S are not heard in court.[27]  Restorative Justice has the potential to change that.  This paper posits that the adversarial mode of justice used in the U.S. and elsewhere may be one of the obstacles to full implementation of the CRC cited by the Committee on the Rights of the Child.[28]

Even in some non-adversarial models, respect for the view of the child is diluted for the sake of the child’s safety.  According to Michael Hagelberg, Esq., in a non-adversarial mediated divorce process called Collaborative Law,

The child is handled by a trained psychologist rather than an attorney for the child who may or may not have great skills in dealing with children.  Children are never asked the “big question” as to whom they want to live with.  Instead, through interviews with the neutral psychologist, each parent expresses their view of the children.  The children have an opportunity to meet with a psychologist who will then make recommendations to the parents.  This is not based upon any thing that the child says, but on the psychologist’s observations of all members of the family unit. . .  .  [Y]ou may think that a child would come to the Collaborative meetings with the parents.  This would never happen.[29] (Emphasis supplied.)

Distinct from Collaborative Law, Restorative Justice may be one way to implement the ideology of Article 12 because its peacemaking circles include all relevant stakeholders, including children.

Restorative Justice is a process that is currently understood to belong in the criminal court arena[30], but this process is also well suited for use in all types of conflicts involving juveniles, whether as “offenders,” “victims,” or “stakeholders.”  Restorative Justice is a non-adversarial methodology for solving problems.  It falls under the umbrella of therapeutic jurisprudence, and is similar to Collaborative Law.[31]  Restorative Justice is aligned with Article 12 of the UN Convention on the Rights of the Child because it gives children a voice in a system which affects them, promoting respect for the views of the child.  “This process gives people the opportunity to talk about three very important questions:  What happened?  How were people affected?  What needs to be done to make things better?”[32]  Whether a child is a part of a Restorative Justice process as an offender or as a victim, she is given the opportunity to help answer these questions “in a safe and structured setting that seeks an outcome determined largely by the people whose interests are personally and directly affected by the problem.”[33]  If the Conference is agreed upon, a neutral facilitator guides the process, but is considered on equal footing with the other participants.  In order to talk in the Circle structure of the Conference, an individual holds a Talking Piece.  The Talking Piece can be anything.  A suitable Talking Piece might be a victim-chosen object that serves to honor someone harmed by a crime:  a photo of a loved one, for instance.[34]  While one person holds it, no one else may speak.  Even if she is silent, her silence is given power because the other participants can only listen to her silence, they cannot interrupt it.  In this way, even shy or reticent participants are given a stake in the outcome of the Conference.  As each person speaks, a picture is formed of what transpired, from each person’s point of view.  It is not meant to be a chance for everyone to fault the offender, and heap restitutions on his back to restore the harm alone.  Rather, it is an opportunity to hear why a crime took place and how it impacted each person involved.  Even when offenders cannot speak adequately on their own behalf, their supporters, and even community members present as stakeholders, often are the ones who transmit the problems that led to the crime to begin with.  Those problems cannot necessarily be corrected by the offender, but also require commitment of others to repair the harm.  Thus, the Agreement signed at the end of a Community Conference may not only include a promise to pay restitution by an offender, but might include an additional commitment by a community member to either the victim, the offender, or both.

According to Kaye Pranis, another American leader in the Restorative Justice movement who currently works in the Minnesota Department of Corrections, explained at a conference:

The peacemaking or sentencing circle is a community directed process, in partnership with the criminal justice system, for developing consensus on an appropriate sentencing plan which addresses the concerns of all interested parties.  Peacemaking circles use traditional circle ritual and structure to create a respectful space in which all interested community members, victim, victim supporters, offender, offender supporters, judge, prosecutor, defense counsel, police and court workers can speak from the heart in a shared search for understanding of the event and to identify the steps necessary to assist in healing all affected parties and prevent future occurrences.[35]

 

Restorative Justice Globally

 

Restorative justice is also used elsewhere in the world, such as New Zealand, Australia, Northern Ireland, and Japan.[36]

In Northern Ireland a number of factors helped create an environment where restorative justice could thrive, such as “suspicion [of] statutory policing, ‘welfare’ and ‘justice’ agencies [and] disillusionment with the summary nature of ‘paramilitary justice . . . .”   The Office of First Minister and Deputy First Minister has been cited as writing,

“We will recognize the complexity of children’s lives by adopting a ‘whole-child’ approach in all areas of policy development and service delivery relevant to children and young people ….  In accordance with the UN Convention on the Rights of the Child, we will be proactive in obtaining the views of children on matters of significance to them . . . We are committed to respecting and progressing the rights of children and young people in Northern Ireland and will be guided and informed by the UN Convention on the Rights of the Child.”[37]

This whole child approach has led to the implementation of Restorative Justice there.[38]

Elsewhere, Restorative Justice Programs are based on the Family Group Conference model started in New Zealand in the late 1980s.[39]  As in the U.S., “offenders, the victim, their respective families, friends, and teachers convene for the purpose of facilitating a discussion that leads to reconciliation, appropriate reparations, and support . . .”.[40]  Family Group Conferences, the Restorative Justice process used by indigenous groups and courts in New Zealand, are widely practiced and have been deemed extremely successful.[41]

Despite their similarities, in the U.S. the Restorative Justice Process is centered on the victim’s needs:  her needs to make sense of a crime; her need to speak about how it impacted her, and her need for reparations.[42]  In New Zealand and Australia, reparations also occur, but they are not the focus:  “In both the New Zealand and the Australian models, it is the individual offender and his or her family that is the primary focus of any intervention .  .  .   the family and the individual are seen as the things to be changed, on the assumption that the delinquency itself represents a symptom of family and individual malfunction.”[43]

There are several reasons to focus on the offender.  “Proponents of restorative justice argue that this type of face-to-face interaction helps the young offender to recognize the impact his or her actions had on others . . . [and] determining the reparations most appropriate for the victim and the community gives the offender a stake in the outcome.[44]

Japan uses a model for dealing with crime which has been labeled benevolent paternalism, family model, and restorative justice.[45]  In Japan, a restorative model is used in corporate disputes, in schools (to combat bullying), and in the criminal setting.[46]  According to John Braithwaite, who has written about Restorative Justice internationally, “the restorative elements of Japanese social control are more influential and sophisticated than in the West” and “[w]e have much to learn from them.”[47]  For instance, he explains:

“the best protection against the vices of moral lecturing and sarcasm is to do a good job of inviting a large number of caring supporters for both the victim and the offender . . . If these invitees really do care about the offender, they will counter moral lecturing with tributes to the sense of responsibility and other virtues of the offender.  Then, even if the sort of connection with the moral lecturer that would allow productively reparative communication is severed, the bond with the other participant who comes to her defense is strengthened in the same sequence . . . this is the genius in the design of a Maori conference, a Cree healing circle, or Japanese school discipline, that is absent in the design of dyadic Western victim-offender mediation.”

There are some problems with Japanese Restorative Justice in criminal systems.  For instance, as in Western models, due process concerns are largely swept aside in favor of respect for authority figures trusted to solve crimes.[48]  And, citizens are not granted very much day-to-day privacy, since crime control is at the heart of the restorative model.  One commentator wrote that “Japan’s criminal-justice system places great emphasis on the reintegration and rehabilitation of suspects in accordance with their individualized circumstances.”[49]   However, to do that “the Japanese criminal justice system more closely resembles an “inquisitive” family that insists on keeping tabs on its members and learning everything it can about them if they come under suspicion.”[50]

Still, in terms of outcomes, restorative justice is used more often than incarceration; only five percent of convicted persons go to prison in Japan, and of those the average sentence is less than two years.[51]

 

Restorative Justice in the U.S. (Recap)

Sue Klassen, a board member and facilitator at Partners in Restorative Initiatives in Rochester, NY, explained that Restorative Justice is normally used in criminal court with juveniles, and how helpful a process it is there.[52]  One example she gave involved a Community Conference involving two juvenile boys.[53]  She said:

The situation involved a younger boy and an older boy who had been ‘horseplaying’. The older boy lifted up the smaller boy by his neck…and the smaller boy lost consciousness and fell, breaking his front teeth.  The ambulance came.”[54]  Klassen reported that “the circumstance were such that the apology was not complete. The parents of the smaller boy were very upset; especially since their son had been hurt on prior occasions in the schoolyard. Charges were pressed.[55]

This was, she said “in the end, a great learning experience…the family harmed wanted, in the end, more a chance to question the offender…see a sincere apology…for things to make sense.”  She reported that, yes, both boys were in the circle and had the chance to talk.[56]  Klassen emphasized that the victim would have lifelong challenges due to his broken teeth but having been present in the Conference, she said, “a very sincere forgiveness occurred and his mother (who had pressed charges) had a chance to feel good about this.  And the victim was really positive about the experience.” [57]

Howard Zehr, a leader in the field of Restorative Justice in the U.S, has written, “A restorative justice response in a criminal case, similar to mediation in civil and interpersonal disputes, relies heavily on third-party facilitation of dialogue . . . .” He also underscored one of the problems with that process, writing, “[I]n criminal conflict, someone with authority in the criminal justice system has already judged which of the parties is at fault and who has been harmed.  For restorative justice to work, communities must assume an active role in mending relationships after a crime is committed.”[58]

Restorative Justice assumes that the “truth-finding” capacity of the adversarial system is not necessary; that the truth has already been found out by the authority figure that came upon the situation.  It seems cynical to presume that because an officer has named a defendant in an accusatory instrument and the defendant is interested in a plea bargain, therein lay the evidence that defendants are “offenders.”  But, that is the underlying assumption of a process that names offenders with accusatory instruments prior to any trial taking place.

A second problem with the Restorative Justice alternative is that the dichotomous victim-offender labels can be an oversimplification that does not recognize that in many cases victims are also offenders and offenders are also victims.  For instance, when police come upon a scenario where one person is hurt, they either press criminal charges on the other person present, or if both parties are hurt, police may cite both for Disorderly Conduct.[59]

“We attempt to identify the “Primary Aggressor,” said Captain Steven Siena of the Monroe County Sheriff’s Department in Rochester, NY.[60]  “[That is,] the person who initiated the fight.  It’s tough to generalize that the “winner” gets arrested, but it does happen.”[61]

So, in some instances, the victim may also be the first aggressor, and the Community Conference is thus unfair to the person it has labeled the “offender” (who is actually a victim or co-offender who successfully protected himself).  Restorative Justice assumes that those named as offenders by police and others in the criminal justice system have been appropriately labeled in crime scenarios.  Again:  “[R]estorative justice practices differ from mediation insofar as they account for the way in which criminal conflict is different from civil conflict.  Most significantly, in criminal conflict, someone with authority in the criminal justice system has already judged which of the parties is at fault and who has been harmed.”[62]

Even when the process correctly identifies the victim of a crime the process can re-victimize the weakest participants, or hurt those who are not good at communicating their point of view as those whom charges were originally levied against.  Others have leveled this charge against therapeutic processes in general, writing that mediation processes actually re-victimize previously abused persons, especially domestic violence victims.[63]

However, as many qualms as I have about Community Conferences, I found that the potential for truth-finding and justice for the individuals involved and the stakeholders in the event exists just as readily than other justice methodologies, and that additional benefits to the community exist.

In the adversarial model, defendants do not usually have a chance to speak until trial, except when blurting out information that may help reduce their bail. And, since most defendants never go to trial, they never get that opportunity.  The victims do not have a chance to speak at all[64].  For children in judicial proceedings concerning them, this inability to express themselves is directly opposed to Article 12 of the CRC. Restorative Justice, despite its limitations, cures that failure.

The Restorative Justice process solves many macro-problems with the adversarial system, including: the high number of guilty pleas in criminal court (which may after all suggest that many defendants are in fact guilty); defendants who rarely have the chance to express feelings of remorse or to make amends to those they have harmed;  victims who have no chance to express how they are impacted by crime;  and the wider community’s disconnect from ownership of the problems underlying crime.  Finally, Restorative Justice is harmonious with Article 12 of the CRC.

CONCLUSION

In 1971, Supreme Court Justice Douglas’s famously dissented in Wisconson v Yoder: “I think the children are entitled to be heard.”[65]  In that case, the children’s right to quit education early was reasoned to be in the best interest of the rights of the family (to maintain an Amish culture).  Douglas’s qualm about hearing the children’s point of view was an unusual one in the history of U.S. family-related Constitutional law.  Today, respect for the views of the child is a right the international community acknowledges through Article 12 of the UN Convention on the Rights of the Child.  The judicial system is a place where the voice of the child ought to be heard. Children will not be heard in an adversarial process which discounts the voice of victims, offenders, and community members, but all stakeholders will be heard in Circle, in a Restorative Justice process.


[1] Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (November 20, 1989).

[2] Black’s Law Dictionary defines diversion program as: (1972) 1. Criminal law. A program that refers certain criminal defendants before trial to community programs on job training, education, and the like, which if successfully completed may lead to the dismissal of the charges. — Also termed pretrial diversion; pretrial intervention. Cf. deferred judgment under judgment. [Cases: Sentencing and Punishment 2051–2054.] 2. A community-based program or set of services designed to prevent the need for court intervention in matters of child neglect, minor juvenile delinquency, truancy, or incorrigibility. • Sustained by government funding, the program provides services quickly and in a nonadversarial manner so that there is no need for a formal court trial.

[3] The law, NY CRIM PRO § 180.20, reads: “Proceedings upon felony complaint; removal of action from one local criminal court to another . . . ‘3. Notwithstanding any provision of this section to the contrary, in any county outside a city having a population of one million or more, upon or after arraignment of a defendant on a felony complaint pending in a local criminal court having preliminary jurisdiction thereof, such court may, upon motion of the defendant and with the consent of the district attorney, order that the action be removed from the court in which the matter is pending to another local criminal court in the same county which has been designated a drug court by the chief administrator of the courts, and such drug court may then dispose of such felony complaint pursuant to this article.” (Emphasis supplied.) Relying on this statute means practioners (judges, the defense bar, and District attorneys in NY state) read ‘drug court’ generously to mean a ‘discretionary diversion’ to criminal court.

[4] Id.

[5] U.N. GAOR, 44th Sess., 61st plen. mtg. at 9, U.N. Doc. A/44/25 (November 20, 1989).

[6] Carol Bellamy, Forward to Implementation Handbook for the Convention on the Rights of the Child, at ix (3rd ed. 1998).

[7] Retrieved from http://www.unicef.org/crc/ (Delineating that there are four guiding principles to the CRC: Articles 2, 3, 6, and 12. Article 2 explores “Non-discrimination.” Article 3 explores the “Best Interests of the Child.” Article 6 explores the “Right to Life” and Article 12 explores “Respect for the Views of the Child.”)

[8] Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (November 20, 1989).

[10] Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (November 20, 1989

[11]See  Moravcsik, Andrew, The Paradox of Human Rights Policy, in American Exceptionalism and Human Rights 167 (Michael Ignatieff, Ed., 2005) (defining exceptionalism as “aversion to formal acceptance and enforcement of international human rights norms”)

[12] See Mason, Mary Ann, The U.S. and the International Children’s Rights Crusade: Leader or Laggard?; 38 J. of Social Hist. 4 955, 959 (Summer, 2005) (writing that “by the early part of the twentieth century children’s rights to basic protection and provision were largely recognized with the state as the enforcer and the provider of important new services, most notably public education. Children were treated equally among themselves [rather than some being treated as indentured servants or as slaves]. . . The concept of the child’s “best interests” had been introduced and a nod given to developmental needs.”); see also Trammell, Rebecca S., Orphan Train Myths and Legal Reality, 5 Mod. Am. 3, 6 (.2009) (writing “In 1909, Theodore Roosevelt called the first White House Conference on Children, which directed state and federal bodies to implement programs designed to aid destitute children and their families.”); see also Ferguson Clement, Priscilla, With Wise and Benevolent Purpose: Poor Children and the State Public School at Owatonna,1885—1915; 49 MN Hist. 1,3 (Spring, 1984) (finding that “[a]s early as 1856, some New Yorkers protested against incarceration of needy children alongside adult paupers, and by the 1860s and 1870s several states had initiated plans to remove youngsters from public poorhouses. . . ).

[13] See Application of Gault, 387 U.S. 1, 13 (1967) (holding that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone”); see also Tinker v Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (which stands for the proposition that“[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”); see also Fair Labor Standards Act of 193, § 29 U.S.C.§ 216(e) (1938) (giving children the right to a minimum wage and a shorter work week); see also Morgan, Laura J. Child Support Fifty Years Later, 42 FAMLQ 365, 367 (Fall, 2008) (documenting the history of moral, economic, and legal underpinnings for child support in the U.S.); see also State v. Anthony  133 N.C. App. 573, 575 (N.C.App. 1999) (which exemplifies U.S. notions that a child under 18 cannot “consent” to sex but will be treated as a victim of statutory rape).

[14] U.N. GAOR, 44th Sess., 61st plen. mtg. at 9, U.N. Doc. A/44/25 (November 20, 1989).

[15] Id.

[16] But see http://www.therestorativeway.org/resmeas6.html for an example of Peace Circles, a Restorative Justice process used in schools even with very young children, for the purpose of problem-solving. In such settings, even very young children can communicate something about their feelings about an event through their tension, their attention or inattention, and their silence.

[17] Breger, Melissa L. Esq. Against the Dilution of a Child’s Voice in Court, 20 IND. INT‘L & COMP. L. REV. 175, 182 (2010)

[18] Id.

[19] For a summary of which states use the best interest model, and which use attorney for the child or a hybrid model, see http://www.law.yale.edu/rcw/index.htm.  Retrieved April 21, 2011.

[20] Breger, Melissa L. Esq. Against the Dilution of a Child’s Voice in Court, 20 IND. INT‘L & COMP. L. REV. 175, 182 (2010)

[21] Melissa Breger, Esq. is a Professor at Law at Albany Law School and family law scholar.

[22] Id.

[23] Id.

[24] Id.

[25] Elrod, Linda. Therapeutic jurisprudence, Child Custody Practice and Procedure §1:16.

[26] Manuel, Nestle. 35 Am. Jur. Proof of Facts 2d 665, 665 (1983)

[27] see http://www.law.yale.edu/rcw/index.htm.  Retrieved April 21, 2011. Research table therein shows that most states do not allow children to testify in custody hearings, for example.

[28] U.N. Report of the Comm. on the Rights of the Child, May 8, 2000, U.N. Doc A/55/41; GAOR, 55th Sess., Supp. No. 41 (2000)

[29]Personal communication with Michael Hagelberg, Esq. a Collaborative Law attorney, in an email on March 7, 2011.

[30] Zehr, Howard, The Little Book of Restorative Justice 20 (2002) (arguing that it is crime at the center of the web of relationships which restorative justice aims to repair); see also Bazemore, Gordon, Will the Juvenile Court System Survive? Annals of the American Academy of Political and Social Science, Vol. 564, pp. 81-108  (July 1999) (arguing that Restorative Justice is the model which may help restore successful outcomes in the criminal juvenile justice system); see also Bilchik, Shay, Administrator OJJDP, Balanced and Restorative Justice for Juveniles: A Framework for Juvenile Justice in the 21st Century (Aug 1997) available at http://www.ncjrs.gov/pdffiles/framwork.pdf (arguing for restorative justice in criminal court); see also Johnson, David T.  The Japanese Way of Justice: Prosecuting Crime in Japan. New York: Oxford University Press, 2002 (finding that Restorative Justice in Japan is a dominant model of dealing with crime).

[31] Michael Hagelberg, Esq., an attorney who specializes in Collaborative Law who has also done work bringing Restorative Justice to courts in Rochester, New York, explained the difference between Restorative Justice (via the “Community Conference”) and Collaborative Law: “Community conferencing is different from Collaborative Law.  Collaborative Law was started by an attorney named Stu Webb in 1990.  He was tired of the way that matrimonial cases were handled as adversary contests.  He unilaterally declared in a letter to the judge and other attorneys that he would no longer participate.  His idea was that he would sit down with another attorney and their clients and try to work out a process and settlement that would work for everyone. This idea has spread across the country and throughout the world.  The International Association of Collaborative Practitioners has members in the United States, Canada, Australia, New Zealand, England, Ireland, Germany and many other countries. The concept of Collaborative Law has also grown.  It is much more common at this point to have a “team approach” which will include not only the lawyers, but coaches, neutral facilitators, child psychologists, financial specialists and others.  We may not all sit down at the same table at the same time but the team approach helps us deal with legal, personal, emotional, financial and other aspects of the divorce.” Hagelberg also told me, “Community Conferencing is a Restorative Justice process that is used in criminal cases, as well as in groups and communities to “make things right” after a harm has been created.  The parallels between the methods are clear.  In both cases we are trying to reach a settlement through listening to the other party and trying to understand their needs and interests.”

[33] Zehr, Howard, Restorative Justice: ADR in Criminal Cases 36 Fall VTBJ 49  (Fall, 2010)

[34] The trainings which highlighted conference facilitation, the use of ritual and nonviolent communication, took place at Partners in Restorative Initiatives (PIRI) in Rochester, NY. I learned about Peace Circle, which Community Conferences are based upon, and about Community Conferences themselves.

[35] Pranis, Kaye. Restoring Community: The Process of Circle Sentencing, Minnesota Department of Corrections presented at Justice Without Violence: Views from Peacemaking Criminology and Restorative Justice. June 6, 1997. Retrieved at http://www.corr.state.mn.us/rj/publications/circle.htm

[36] Muncie, John., Illusions of Difference, 51 BRITJC 40, 46 (January, 2011)

[37] Id.

[38] Id.

[39] Farber, Hilary. To Testify or Not to Testify: Comparative Analysis of the Australian and American Approaches to a Parent-Child Testimonial Exemption, 46 TXILJ 109, 110 (citation omitted) (Fall 2010).

[40] Id.

[41] Farber, Hilary. To Testify or Not to Testify: Comparative Analysis of the Australian and American Approaches to a Parent-Child Testimonial Exemption, 46 TXILJ 109, 110 (citation omitted) (Fall 2010).

[42] Klassen, Sue, Personal communication, March 4, 2011 (Executive DIrector of Partners in Restorative Initiatives)

[43] Farber, Hilary. To Testify or Not to Testify: Comparative Analysis of the Australian and American Approaches to a Parent-Child Testimonial Exemption, 46 TXILJ 109, 110 (citation omitted) (Fall 2010).

[44] Id.

[45] See Braithwaite , John, Restorative Justice: Assessing Optimistic and Pessimistic Accounts Crime and Justice Vol. 25, (1999), at 82-85; see also Foote, Daniel, The Benevolent Paternalism of Japanese Criminal Justice, 80 Cal. L. Rev. 317, 321 (Mar., 1992); see also Johnson, David T.  The Japanese Way of Justice: Prosecuting Crime in Japan. New York: Oxford University Press, 2002.

[46] Braithwaite , John, Restorative Justice: Assessing Optimistic and Pessimistic Accounts Crime and Justice Vol. 25, (1999), at 82-85

[47] Id. at 82

[48] Foote, Daniel, The Benevolent Paternalism of Japanese Criminal Justice, 80 Cal. L. Rev. 317, 321 (Mar., 1992) (writing “the Japanese criminal-justice system is also characterized by the great trust placed in and the broad grants of discretion made to authorities that Griffiths and others have regarded as essential attributes of a family-type model. This is the “paternalistic” side of the model.” (citation omitted))

[49] Id. at 321

[50] Id.

[51] Id. at 318

[52] Klassen, Sue, Personal communication, March 4, 2011, (Board Member, Peace Circle Facilitator, and Community Conference Facilitator Trainer at Partners in Restorative Initiatives)

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Personal communication via email interview on April 17, 2011 with Capt. Steve Siena of the Monroe County Sheriff’s Department in Rochester, NY.

[60] Id.

[61] Id.

[62] Byrd, Yvonne and Gibson, Judith, Restorative Justice: ADR in Criminal Cases, 36-FALL VTBJ 49, 49 (Fall 2010).

[63] Grillo, Trina, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J.  1545 (1991).

[64] The exceptions to the idea that victims do not speak in the U.S. criminal justice system are Victim Impact Panels and Victim Testimonials just before a defendant is sentenced. These do take place, but are at the tail end of the criminal justice process, after a finding of guilt and in any event only take place during the most serious of crimes (murder, D.W.I.).

[65] Wisconsin v. Yoder, 406 U.S. 205, 244 (1972)