I have been writing and speaking a lot lately regarding the tremendous changes to Mexico’s criminal justice system, specifically with regards to the incorporation of the right to oral trials and to a host of due process rights into the National Constitution. As a criminal defense attorney who cares deeply about civil rights and individual liberties, I am naturally supportive of due process rights. In several recent presentations, I have referenced the documentary “Presumed Guilty,” which follows a case under the “old model” of the Mexican criminal justice system. The documentary shows how an innocent man is convicted, in large part due to the lack of due process rights afforded to criminal defendants under Mexico’s old system. Clearly, due process rights are important.
At the same time, I am inspired by restorative justice as an alternative paradigm for responding to crime – one that prioritizes healing and marginalizes the use of punishment merely for the sake of retribution. Restorative justice processes, however, generally require people accused of committing crimes to admit guilt. They tend to be more informal meetings, including discussions, where lawyers often do not participate. As such, due process rights are not prioritized in restorative justice. In fact, restorative processes have the potential to violate people’s fundamental due process rights if not implemented according to guidelines designed to protect these rights.
As a criminal defense attorney, I frequently advised my clients to use their rights to remain silent. In fact, I have facilitated trainings that give people the opportunity to practice invoking their right to remain silent in a variety of situations. I have represented clients whose statements have been used against them – many times, my clients disputed making these statements. Other times, police used abusive, coercive, or other illegal means to obtain the statements. I am inherently suspicious of a procedure that encourages someone accused of a crime to make potentially incriminating statements to law enforcement.
This is a dilemma – I am simultaneously an ardent supporter of due process while also being a strong advocate for restorative justice. This is also a dilemma facing various states in Mexico as they struggle to develop new legal codes, many of which incorporate both due process rights and restorative justice procedures.
One of the keys to resolving this apparent dilemma seems to be in the procedures set forth under the law. In New Zealand, specially trained attorneys participate in restorative justice conferences, present to protect their client’s interests while also allowing their client to participate so that the process can move forward. Given that most cases in juvenile and criminal court in the U.S. result in guilty or no context pleas in court, participation in a restorative justice process in which one admits guilt is not so different from what regularly happens in court. In Oaxaca, the state’s law protects the confidentiality of statements made in mediation processes, thus minimizing the potential harm to people arising from statements made during restorative justice conferences.
The key seems to be the extent to which a particular state or country’s criminal justice system buys into restorative justice. If restorative processes are seen as a means of gathering additional information for law enforcement, for example, they have the potential to undermine due process. If, on the other hand, key players in the justice system buy into the core values of restorative justice, there is greater potential for restorative justice and due process to complement each other.
