The adjudicative process is for cases that are not dealt with through cooperative processes. There are several reasons why this may happen. The accused offender may deny responsibility; the victim or offender may choose not to take part in any cooperative processes; the offender may have repeatedly failed to follow through on the reparative part of an agreement made in a cooperative process; or the parties may not have been able to agree on a matter (e.g., restitution) in the cooperative process. On rare occasions, the offender may be referred to an incapacitating program of the adjudicative process by virtue of an agreement made in a cooperative process. However, in those instances a judge will need to review the agreement and approve the use of the incapacitation measures.

Victims are required to participate as witnesses in the adjudicative process only when their testimony is necessary to reach a final conclusion in a case in which such a final conclusion is important for the public interest. However, offenders and victims may choose to use adjudicative processes “cooperatively” (such as when they decide to have a judge make a determination about the legal significance of certain facts.)

The Victims’ Role

The adjudicative process is adversarial in nature. In many respects, it is similar to contemporary criminal courts used outside of RJ City. However, there is one significant difference, and that is that victims are recognized as having “legal standing” to appear in the proceedings not simply as witnesses for the prosecution, but as distinct, third parties. The reason for this is that in RJ City, the adjudicative process deals not simply with the question of the criminal liability of the offender but when criminal liability is found, the judge is permitted to address questions of limited civil liability in imposing a sentence. In fact, if judges impose sentences that make it difficult for offenders to satisfy the limited civil liability judgment, they must explain in writing the reason for overriding the presumption that such judgments should be paid in a reasonable time.

This means that in the courts of the RJ Network, victims are allowed to retain an attorney to represent them at all phases of the adjudicative process. The legal interest they have is to obtain reparation for the harm they suffered in the crime, and to ensure there are reasonable protections against likely future harm. Therefore, they may offer evidence and make arguments in proceedings concerning bail (e.g., to argue for conditions that allow the accused to keep her job, which will make eventual restitution payments more likely, or to argue that the accused should not be released because he poses an imminent threat to cause the victim harm). They may offer evidence and make arguments during sentencing to show that the harm suffered was directly caused by the criminal acts, and to prove the amount of damages. If the accused is acquitted, the victim may argue that the damages resulted from the facts presented during the trial, and that those facts prove a violation of civil law by a preponderance of the evidence.

Victims are not required to enter the criminal proceeding to present these claims for restitution. They are given notice of the charges and have 30 days in which to file as parties in the case. Victims are permitted to hire attorneys to represent them.

Judgment

If the suspect is not found guilty, the government must provide compensation for any damages caused by the suspect’s participation in the court process. Cooperative processes should be used as a first option to determine compensation. If the suspect is found guilty beyond a reasonable doubt, the suspect may choose whether to proceed with cooperative sentencing or adjudicative sentencing.

Adjudicative sentencing is viewed as a last resort. Participation in the cooperative process is encouraged, and sentencing is used only when arbitration, negotiated settlement, shuttle diplomacy and every other form of agreement is either refused or unproductive. Throughout the sentencing process, the judge seeks input from all parties involved in the crime and repeatedly invites the parties to reconsider participation in the cooperative process.

Sentencing focuses on identifying the injustice that took place, repairing the harm done, and clarifying future intentions. However, reparation is the only one of those three that can be a coerced part of the sentence.

The sentencing judge also takes the context of the crime into consideration.  Specifically, this involves considering the background and circumstances of the offender insofar as those are helpful in determining the nature and length of the sentence.  It also means considering the background and circumstances of the victim insofar as those are helpful in determining the amount and nature of reparation.

Adjudicative sentencing is reparative in focus. Judges are given latitude in imposing sentences, although they are instructed to consider three factors in imposing reparative sentences: 

1.      Amount of harm done (to determine amount of reparation), and

2.      Risk posed by the offender (to determine the form of incapacitative or reintegrative measures, if any).

If the victim has presented evidence of harm in requesting reparation, the judge uses that evidence in determining the amount of reparation to order. If the victim has not presented such evidence, the judge uses a schedule that translates average losses to victims of particular crimes into the number of days of an average wage earner’s income that would be needed to pay for those losses. The judge orders reparation in an amount equal to the defendant’s daily income multiplied by the number of days in the schedule regardless of the victims’ actual losses. Defendants’ reparation is then paid into a reparation fund, from which victims can receive money for actual losses upon a proof of those losses.

If defendants are unemployed and unable to obtain a job, they are ordered to work at community service assignments for the number of days provided in the reparation schedule.  The agencies receiving the services pay an amount established by the Steering Committee into the reparation fund.