Call for an Illinois Supreme Court Rule to Provide Privilege for Parties Participating in Restorative Justice Practice

 

FOR IMMEDIATE RELEASE
March 22, 2018
CONTACT: Judge Stuart Katz
312-433-5008
spkatz1@comcast.net

Proponents of Restorative Justice Call for an Illinois Supreme Court Rule to Provide
Privilege for Parties Participating in Restorative Justice Practice

On Monday March 26, 2018, the Illinois Supreme Court Rules Committee will hold a hearing on
a proposed rule to provide privilege for parties participating in a restorative justice process.
Hearings on seven proposed rules begin at 10:30 a.m. at The Michael A. Bilandic Building,
160 N. LaSalle Street, Room C-500, Chicago, Illinois 60601

The proposed rule makes participation and communication revealed in the restorative justice
practice, inadmissible in any court or tribunal. A Restorative Justice Practice brings together
parties who have caused harm, parties who have been harmed, and/or community stakeholders.
The parties come together in order to identify harm, repair harm to the extent possible, address
trauma, reduce the likelihood of further harm, and/or strengthen community ties by focusing on
the needs and obligations of all parties involved through a participatory process. This can lead to
transformation of people, relationships and communities.

“The Rule of Confidentiality will serve juveniles’ recovery from trauma. Communities will
become safer when children are free to talk about their anxiety and anger. Trust takes away
shame. The Illinois Supreme Court has a living monument in the Confidentiality rule given to
lawyers in recovery: Confidentiality with LAP. Now another living monument may evolve for
children who are called ‘juveniles’ …a brand new shining Rule of Confidentiality that opens the
doors of the future to the children of our State. Judge Shelia M. Murphy, Co-Director of The
John Marshall Law School Restorative Justice Project.

Offenders are encouraged to be totally honest about their past. Indeed, this honesty allows the
victim and community representatives to understand fully the offender’s situation and for the
circle to come up with a truly appropriate resolution. Thus complete honesty makes for the best
outcomes. By adopting the proposed rule, the Illinois Supreme Court would be acting
consistently with the restorative justice policies endorsed by American Bar Association. Judge
Thomas M. Donnelly.

“By adopting the proposed rule, the Illinois Supreme Court would act as a leader in the
development of restorative justice policies in the United States. By offering a privilege between
the parties and making communications issued within a restorative justice practice inadmissible
in court, the Illinois Supreme Court would foster the use of restorative justice and empower
communities to explore local remedies to legal conflict. William R. Kunkel, General Counsel of
the Archdiocese of Chicago.

“When Restorative Justice is practiced it is likely privileged information will be revealed. If a
court proceeding is initiated, it is paramount that this privileged information be protected. The
proposed rule would allow for Restorative Justice to facilitate open and honest communication
for a just result while guarding protected and confidential communications and activities.” Amy
P. Campanelli, Public Defender of Cook County.

“We believe that this privilege is a necessary element for meaningful engagement in any
restorative justice practice, and we see the adoption of this rule as a significant step toward
building more just and meaningful communities.” Joy Gossman, Lake County Public Defender
“… [W]e have learned that confidentiality is essential to the restorative justice process…. [I]t is
noteworthy that the proposed rule contains express exceptions to the confidentiality requirement for
mandated reporters and in the event disclosure is deemed necessary to prevent a harm or crime”
Julie Biehl, Director Children and Family Justice Center, Bluhm Legal Clinic.

“Restorative justice provides an opportunity for offenders to make an apology and victims to
hear one. It affords all involved the possibility of resolution, reconciliation and healing.
Essential to that process, though is a rule … to protect the confidentiality of privileged
information revealed during the restorative justice conversations between the victim and the
offender.” Jeanne Bishop, Family Member of Murder Victims and Criminal Defense Attorney.
One of the best practices that is growing across the U.S. is the use of restorative justice as an
alternative to formal justice processing. During restorative processes, all the parties involved
shall enjoy fair trial guarantees, to avoid secondary victimization and ensure fairness of the
proceeding. Restorative principles, such as voluntary participation, confidentiality,
proportionality, and neutrality of the mediator, should be guaranteed by law;” Elizabeth
Clarke, Juvenile Justice Initiative.

“The circle process allows the primary and secondary students to discuss problems and feelings
that they have never articulated because they know the discussion is confidential and that they
will be treated with respect. School authorities inform us that the effect of this work has been
reduced truancy and misbehavior in the school. Restorative justice works precisely because it
allows persons to be open and vulnerable in ways that they could not otherwise express.
Dean and Professors of the John Marshall Law School.

“The protection offered under the proposed rule would offer participants in the restorative
justice peacemaking circle the assurance that their admissions and statements would not be used
against them in any other proceeding. The proposed rule would inevitably result in more
individuals agreeing to participate in this court-sanctioned restorative process.” Sara Balgoyen,
Executive Director Illinois Balanced and Restorative Justice.

“The proposed rule would inevitably result in more individuals agreeing to participate in this
court sanctioned process. The protections offered under the proposed rule would offer
participants in the Restorative Justice Community Court the assurance that their admissions and
statements would not be used against them in either a civil or criminal forum.” Chicago Bar
Association.

“…Sufficient safeguards appear to exist by vesting courts with authority to determine the
legitimacy of any restorative justice practice and, as a consequence, the reach of privilege.”
Illinois State Bar Association.

 

 

Cardinal Cupich Letter of Support