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Need For Confidentiality Privilege In Restorative Justice Mediations In Illinois

By Jennifer Ullman on Tuesday, March 24th, 2020

Imagine a victim of a robbery has agreed to meet with the offender in a restorative justice peace circle, where each member will be able to discuss their feelings and reasons, and they’re both told the circle will be kept confidential.[1] In the process of the circle, the offender explains his reason for robbing the victim and further relays that they had robbed other individuals that night.[2] The circle ends with the victim and offender reconciling and agreeing to restitution instead of prison time. However, a few months later the circle keeper is subpoenaed by the county state’s attorney requiring testimony “in a criminal trial where the offender from” the circle has been charged with other robberies.[3] Despite the keeper promising the victim and the offender confidentiality before beginning the circle, the keeper is now being forced to divulge this confidential information.

Restorative justice is the practice of repairing harm done to a victim or victims through a holistic view of all parties, including the victim, the offender, and society as a whole.[4] Restorative justice can be conducted through peace circles. Peace circles allow a place for each individual’s voice to be heard.[5] Much like a mediation is facilitated by a mediator, peace circles are conducted by a circle keeper. Other participants of the circle include the victim, the offender, and other members of the community that may have been hurt or harmed.[6] Most commonly, these practices are conducted through “face-to-face meetings between stakeholders including the victim and the offender, variously called victim offender reconciliation programs (VORP), victim offender mediation (VOM), victim offender dialogue (VOD), and victim offender mediated dialogue (VOMD).”[7]

In order for these restorative justice process to work, honest communication between all parties must occur, which is why confidentiality is such an imperative factor of peace circles.[8] Without the promise of confidentiality, both the victim and offender will likely not feel safe to divulge sensitive information either about themselves personally or the crime that occurred.[9] This hesitancy is especially apparent when offenders have committed other crimes that have not been prosecuted yet. The “come clean” aspect of restorative justice cannot be achieved without confidentiality.[10]

Currently only 29 states have laws that prevent any of this sensitive information from coming into court.[11]Delaware, Tennessee, and Texas currently have statutes that protect information given in a victim offender mediation.[12]Tennessee’s statute states:

All memoranda, work notes or products, or case files of centers established under this chapter are confidential and privileged and are not subject to disclosure in any judicial or administrative proceeding unless the court or administrative tribunal determines that the materials were sub- mitted by a participant to the center for the purpose of avoiding discovery of the material in a subsequent proceeding. Any communication relating to the subject matter of the resolution made during the resolution process by any participant, mediator, or any other person is a privileged communication and is not subject to disclosure in any judicial or administrative proceeding unless all parties to the communication waive the privilege. The foregoing privilege and limitation on evidentiary use does not apply to any communication of a threat that injury or damage may inflicted on any person or on the property of a party to the dispute, to the extent the communication may be relevant evidence in a criminal matter.[13]

Illinois is not one of those 29 states with peace circle protections. That means, in Illinois, without these confidentiality protections, offenders are less likely to want to engage in restorative justice practices in fear of revealing information that could hurt them in the future. On the other hand, offenders may agree to restorative justice practices, reveal confidential information, and then be blindsided by the court entering this information into evidence, further losing trust in the criminal justice system.

In the United States, there are “almost 2.3 million people” incarcerated.[14] That is “nearly 25% of the world’s prison population” despite the fact that the United States only takes up 5% of the entire global population.[15] More astonishing though, 1 in 3 black men and 1 in 6 Latino men in the United States will be incarcerated during their lifetime.[16] Women are also “the fastest growing incarcerated population in the United States.”[17] While some individuals in the United States believe they won’t be affected by the mass incarceration epidemic, they’re highly mistaken as the “prison system costs taxpayers $80 billion per year.”[18] With this in mind, alternatives to incarceration is of utmost importance.

Restorative justice practices have proven to decrease recidivism rates.[19] That is only one reason why restorative justice is so vital. When the criminal justice system works to repair the harm done to the victim and the offender, the entire community reaps the benefits. However, without the protections of confidentiality, there is no telling how honest and successful these practices can be. Restorative justice needs a safe and honest to do its true work. Illinois must follow suit of the other 29 states to implement privilege laws surrounding restorative justice in an effort to halt mass incarceration.

[1] Mary Ellen Reimund, Confidentiality in Victim Offender Mediation: A False Promise? 2004 J. of Dispute Resolution401 (2004) (introducing a similar hypothetical).

[2] Id. (maintaining the similar hypothetical).

[3] Id.

[4] Id. at 403-04; See also Centre for Restorative Justice & Reconciliation, What is Restorative Justicehttp://restorativejustice.org/#sthash.Sde9AkKu.dpbs (last visited Jan. 30, 2020) (explaining briefly what restorative justice is).

[5] Centre for Restorative Justice & Reconciliation, Circles http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-3-programs/circles/#sthash.uUEGl9cs.dpbs (last visited Jan. 30, 2020).

[6] Shannon M. Silva, Elizabeth H. Porter-Merrill & Pete Lee, Fulfilling the Aspirations of Restorative in the Criminal Justice System? The Case of Colorado, 28 K. J. L. & Pub. Pol’y 456, 460 (2019).

[7] Id.

[8] Reimund, supra note 1 at 406.

[9] Id.

[10] Id.

[11] Id. at 409.

[12] Id. at 410-11.

[13] Id. at 410.

[14] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2019, Prison Pol’y Initiative (March 19, 2019) https://www.prisonpolicy.org/reports/pie2019.html.

[15] Mass Incarceration, Am. Civ. Liberties Union https://www.aclu.org/issues/smart-justice/mass-incarceration (last visited March 2, 2020).

[16] Id.

[17] Id.

[18] Id.

[19] Sophie Bandarkar, To End Mass Incarceration, We Must Rethink How We Respond to Violence, In These Times(October 10, 2017) https://inthesetimes.com/article/20565/mass-incarceration-prison-violence-restorative-justice.