Restorative Justice Privilege
In their February Illinois Bar Journal article, “Restorative Justice Privilege,” Hon. Stuart Katz (ret.) and Patrick Keenan-Devlin examine Public Act 102-100, which provides that any statement made during a restorative justice practice is privileged, meaning that it is inadmissible in any court or administrative proceeding. Additionally, the authors note that since restorative justice practices often involve pre- and postconference meetings, anything said in preparation for, or as a follow-up to, a practice is also privileged.
The new law also addresses the potential for individuals using this newly established privilege for nefarious purposes and provides that the “legitimacy of a restorative justice practice, if challenged in any civil, juvenile, criminal, or administrative proceeding, shall be determined by a judge.” But the new statute does not create a new confidentiality obligation. It is written strictly as an evidentiary privilege to be exercised by the party who made the statement or statements. In theory, the authors suggest, a restorative justice participant could disclose what was said or done during a restorative justice practice to a third party, such as the state. The state could then investigate based upon the information provided but would be prohibited from using statements attributable to the declarant in court unless otherwise waived.
Read the article Restorative Justice Privilege in the February issue of the Illinois Bar Journal.
Member Comments (1)
Can there be restoration without true exposure to consequences? I believe that restoration is only truly possible where one confesses and places themselves in the hands of those they wronged seeking grace and mercy.
I had thought that restorative justice was a great idea and worked because people would get real, emotionally naked and vulnerable.
A Mother Jones article on this subject said:
"But it wouldn’t last. Before long, public defenders started declining Katz’s offers for restorative justice, worried that whatever their young clients admitted during the process might later be used against them in court. “Just like any other criminal defense lawyer, they’re not going to allow their client to incriminate themselves,” says Amy Campanelli, the former chief public defender in Cook County." So it seems that defense attorneys just want to keep this as another trick in their bag of tricks. So is it real?
The article in the Bar Journal suggests that there are "intrinsic tenets of confidentiality and privilege." I would like to know the logical underpinnings for asserting that confidentiality is "intrinsic" in restorative justice. Simply making the assertion does not make it so. This also suggests that no harm has been done to the group or society and only to individuals. This directly undermines the logic behind the entire criminal law system i.e., the PEOPLE v. ____ and the concept of public harm to the society at large and not private satisfaction or retribution.
I am also confused by the Bar Journal Article where it states "The state could then investigate based upon the information provided but would be prohibited from using statements attributable to the declarant in court unless otherwise waived." Does this mean that the fruit of the poisonous tree doctrine does not apply to the state's use of the statement?