Monday, 30 April 2012

Tim Newell reflects on the Ecocide Trial restorative justice sentencing

I've posted several articles already about the Ecocide Trial. First, an introduction to the whole idea and plan; then an account of what happened from Simon Hamilton (one of the key people behind the whole venture); and most recently a 'trailer' about the next steps.

The key 'next step' after the course guilty verdict was the sentencing, and this was to include a Restorative Justice element. As mentioned last week, Tim Newell took a close interest in this, and below he reflects on the process as it unfolded.
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Tim Newell
 Tim Writes:

The ecocide sentencing took place to follow up the mock trial (in September 2011) that had found two fictional oil company executives guilty of ecocide from the impact of the Tar Sands extraction in Canada.

The whole process showed the difference between current systems and expectations of justice and the possibilities when using a restorative approach.

Both defendants were offered the possibility of the restorative sentencing process – one of them declined, one accepted. Informed consent is a key principle behind any restorative process, but none of us could have envisaged the power of the sentencing circle as it progressed over the course of several hours on 31st March 2012 at Essex University. The complexity of the impact of the crime of ecocide could only be explored in this setting of openness, respect and truth telling.

A sentencing circle (sometimes called a peacemaking circle) uses traditional circle ritual and structure to involve all interested parties. A sentencing circles typically employs a procedure that includes:
- application by the offender
- a healing circle for the victim(s)
- a healing circle for the offender
- a sentencing circle
- follow-up circles to monitor progress.

The facilitator, Lawrence Kershen, chair of the Restorative Justice Council, introduced the process and the participants described their status. The restorative justice conference took place in a private room, where the executive was joined by the firm’s Chief Sustainability Officer and the Chairman of the firm’s pension fund. They were face to face with representatives of those who had been adversely affected by the tar sands Ecocide: someone who represented wider humanity, someone who represented the Earth, someone representing future generations, someone representing birds and someone who provided a voice for indigenous peoples.

I was unable to be present physically, so was glued to the screen which showed the live streamed process for most of the day. I was gripped by the intense dialogue which deepened and developed through the careful prompting of particular questions by the skilled facilitator who was clearly trusted by all.

I was very moved by the contributions made by circle members. They were asked what had happened, and all described their interpretation of the process of oil extraction; then they were asked about who had been affected by what had happened. To have the impact of the extraction process interpreted for wider humankind, for the unborn, for the earth, for the birds and for the local first nations people was powerful and immediate. All were heard in respectful silence and many others in the circle were moved by what they heard.

The next question was what should happen to put things right, and clear possibilities were presented. Again, all went round the circle and picked up on each others suggestions. The document put together by the facilitator was agreed by all.

Restorative justice is a long-established approach in some cultures for healing harm. It allows a dialogue to take place between offenders and victims, including voices speaking on behalf of the non-human world, in order to reach a positive outcome. It was shown to be far more effective at restoring the damage caused, and in changing behaviour, than more traditional sanctions, such as a jail sentence. The evidence for effectiveness in criminal justice matters is well-researched now.

When the court reconvened for the formal legal sentencing, the Judge deferred the executive’s sentencing for six months allowing him time to make true the promises he had agreed to in the restorative justice conference.

As a result of the four hour restorative justice process, he had agreed to an action plan which set up working groups to look into, amongst other things, funding alternative energy sources.

In addition to receiving a four year sentence, the other executive was given a formal Restoration Order which requires him to undertake a number of measures including suspending operations in the tar sands until the area affected is restored to an acceptable level, meeting the financial costs of restoration and publicising his actions.

The process itself wasn’t perfect, but it did demonstrate how restorative justice might work in practice for the corporate crime of Ecocide. It already works in settings other than criminal justice. It also demonstrated that it really is possible for guardians to speak on behalf of the non human world and future generations. Additionally, the nature of justice itself was highlighted in the process. The four year sentence was received by many present as a triumph, but I felt quite anxious that the same old system was being used on such a  complex issue, and that we should look at fundamental questions of what punishment means, and what it can achieve when faced with massive misbehaviour. After all, we are all complicit in receiving the benefits of the crime of ecocide, so where does our responsibility lie?

Clearly ecocide can be controlled through this process, but much wider issues, of our sense of community as guardians of the earth and of the future, were realised through this imaginative transformative event. The respect with which the circle was conducted made sure we could live with each other with greater understanding after it was over.
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Many thanks to Tim for this post. As I was reading it, in preparation for publishing here, I was struck by the similarity (because of the particular issue at stake in this instance) to Joanna Macy's Council of All Beings ritual process. That takes place outwith any legal or judicial framework, but it presupposes that the whole of humanity is, in some sense, 'on trial'. In particular, the experience of 'speaking for other life forms' is very powerful, both for the people speaking as representatives, and for the people who take on the position of 'being the human', hearing and receiving the words and experiences of the other creatures.

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