RESTORATIVE JUSTICE AND SOCIO-EDUCATION IN AN OPEN ENVIRONMENT Luciana Gomes de Lima Jacques Beatriz Gershenson

RESTORATIVE JUSTICE AND SOCIO-EDUCATION IN AN OPEN ENVIRONMENT

Luciana Gomes de Lima Jacques Beatriz Gershenson

Introduction

The objective of the doctoral research was to examine to what extent the incorporation of restorative practices in socio-education in an open environment have become an alternative to the punitiveness that has historically characterised the way that adolescents in conflict with the law are treated in Brazil. This required: analysing the relationships between the theoretical assumptions of Restorative Justice and socio-educational measures in relation to punitiveness; verifying, through the professionals implementing restorative socio-education practices in an open environment, how these practices are inserted in municipal programmes; identifying the challenges encountered by these professionals in the insertion and enforcement of restorative practices in this care; knowing the perceptions of these professionals about punishment in socio-education; and understanding the perceptions of these professionals about relationships between restorative practices, socio-education and punitiveness.

The research enabled grasping the particularities of the relationship between restorative practices and socio-education developed at the Specialised Social Support Reference Centres (CREAS), as part of the care ministered to adolescents serving socio-educa-

tional sentences in an open environment. This is a descriptive and exploratory study, of qualitative nature, underpinned by the dialectical method based on bibliographic and documental research that enabled theoretical deepening on the subject, and empirical research, whose participants were nine Facilitators of Restorative Practices aimed at adolescents serving socio-educational sentences in an open environment recruited using the non-probabilistic sampling technique referred to as “Snowball”. The nine research participants answered an online questionnaire or an interview guided by a script with semi-structured questions – conducted face-to-face and online.

The data collection instruments were designed based on the reality’s explanatory variables: offence, punitiveness, socio-educational measure in an open environment (MSE-MA), socio-education and restorative practices. The information was examined based on Discursive Textual Analysis, substantiated by Roque Moraes (1999; 2003) and Roque Moraes and Maria do Carmo Galiazzi (2011).

It should be highlighted that all the research and data collection of this study preceded the covid-19 pandemic, with its qualification occurring at its onset, and this thesis being completed in the midst of an extremely severe crisis as a result of the pandemic. Therefore, all the concerns related to punitiveness are further enhanced, as it is everywhere, in all forms of State action, not only through its ostensible social control mechanisms, but also in the directing of social protection towards authoritarianism. While it is obvious that the findings in this study tend to be exacerbated in this health crisis scenario, coordinated by representatives of authoritarian regimes – this is a hypothesis that cannot be verified in this study.

Development

In court, following proper investigation and confirmation of the adolescent’s criminal behaviour, the sentencing will impose a socio-educational measure (MSE) that, according to the severity of the offence, varies from: a warning; an obligation to repair the damage; the provision of community service (PSC); supervised probation

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(LA); placement in a semi-confinement arrangement; serving time in an education facility and any other laid down in Article 101, I to VI of the Child and Adolescent Statute (ECA) (BRAZIL, 1990). The Statute stresses that the imposition of a socio-educational measure should consider the adolescent’s ability to comply with it, the circumstances and severity of the offence; where forced labour is forbidden, guaranteeing that “[...] adolescents with mental illness or impairment shall receive individual and specialised treatment, at a place suited to their conditions.” (BRAZIL, 1990, Article 112 and sections).

The Socio-educational Measure in an Open Environment (MSE-MA) of community service is present in Article 112, section III, and in Article 117 of the Child and Adolescent Statute, stipulating that this measure “[...] consists of carrying out tasks free of charge of general interest, for a period not exceeding 6 (six) months, at welfare entities, hospitals, schools and other similar establishments, or in community or government programmes.” (BRAZIL, 1990). It is also determined that these tasks should be in keeping with the adolescent’s skills, carried out during maximum days of eight hours weekly, preferably on Saturdays, Sundays and public holidays, or on business days that do not jeopardise school attendance or normal working hours (BRAZIL, 1990). In the words of Saraiva (2010), Supervised Probation is the most complex MSE-MA and, therefore, requires an attendance structure able to meet the established targets. Notwithstanding its mandatory and retributive nature, Bandeira (2006, p. 151-152) states that the measure is: “[...] the key measure with an eminently pedagogical slant, as, by not making the adolescent in conflict with the law loose his/her freedom, it pushes the adolescent to build a real life project permeated with freedom, voluntary action, a sense of responsibility and control of public power”.

In 2006, through Resolution 119 of the National Council of the Rights of the Child and Adolescent (CONANDA) (BRAZIL, 2006b), that approved the National Socio-Educational System (SINASE), the MSE-MA were stressed in the official discourses, in detriment of measures restricting freedom. One of the principles of this document is the municipalisation of socio-educational care,

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where the State is responsible for the Closed Regime (serving time in a facility) and the Municipality for the Open Environment regime, with priority given to the latter, “[...] as it has been found that increasing the strictness of the measures has not substantially improved the social inclusion of former convicts of the socio-educational system.” (BRAZIL, 2006a, p. 14). However, despite that appraisal, studies demonstrate that the policy of mass incarceration endorsed in the country for adults is matched in the policy of incarceration of adolescents and young people. Over recent decades, it has been found that, paradoxically, while the country’s social indicators improved, there has been an increase in the imprisonment of adolescents and young people, of similar colour and social class.

The National Socio-Educational System (SINASE) was only instituted in 2012, means of by Law 12.594 (BRAZIL, 2012), that regulated the implementation of the socio-educational measures for adolescent offenders, concerning issues that had not been addressed in the Child and Adolescent Statute. For example, by entering a chapter exclusively about the implementation of socio-economic measures that established, among other aspects, its principles (BRAZIL, 1990, Article 35); the procedures related to the maintenance, replacement or suspension of socio-educational measures in an open or closed environment; the individual rights of adolescents serving these measures (Article 49) and full healthcare (BRAZIL, 1990, Article 60 to 65). The SINASE presents a series of actions that, in order to be implemented, require articulated and intersectoral public policies (ÁVILA, 2017).

The socio-educational aspect requires offering the adolescents the conditions for self-discovery and development of their potentialities (TEJADAS, 2005; LIMA, 2010). In addition to access to rights, the adolescents must be made accountable, through actions placing them in contact with the consequences of their offence on others. However, as noted above, in a context of penalising clamour, these goals do not neutralise the discourse (and practice) of those envisaging a criminal or punitive nature to the measure (FRASSETTO et al., 2012).

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In this scenario, as highlighted by Ávila (2017), socio-education is infused with conservative ideologies that corroborate the process of criminalising poverty and judicialisation of the social issue, giving rise to the infringement of human rights. These contradictions feature in the debates on the reduction of the age of criminal responsibility of minors and in the production of knowledge about socio-education, sometimes contributing to “[...] the transformation of social reality from the angle of human rights, sometimes leading to the conservation of the breach of fundamental rights.” (BEHM ROSAS, 2017, p. 13). Along these lines, Barbosa (2013, p. 98) notes that socio-education has different concepts and grounds according to the play of diverse “political and pedagogical” interests and ongoing disputes “[...] that produce discourses and sometimes stigmas about youth in conflict with the law and their circumstances”. This discursiveness is embodied in the theoretical debates in this sphere and in those pervading the perceptions and considerations of the professionals.

In the process of consolidation of the Single Social Welfare System (SUAS), Resolution 109 of 11 November 2009 (BRAZIL, 2009), approved the National Classification of Social Welfare Services, organising them by level of complexity of the SUAS: Basic Social Protection (PSB) and Special Social Protection (PSE), with the latter being divided into Medium and High Complexity. Medium Complexity Special Social Protection includes, among other aspects, the Social Protection Service for Adolescents Serving the Socio-Economic Measure (SPSACMSE) of Supervised Probation (LA), and Provision of Community Service (PSC). The SPSACMSE is carried out in the Specialised Social Support Reference Centres (CREAS), aimed at “providing social welfare support and supervision” to these adolescents and youngsters, contributing to their access to rights and the rebuilding of “values in their personal and social life” (BRAZIL, 2009, p. 24).

The challenge resides in breaking punitive and supervisory practices, characteristic of the period of the “Unlawful Situation”, proposing that “[...] instead of addressing the offences and guilty parties,

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the process should consider damage, those responsible and harmed by the offence.” (BRANCHER; AGUINSKY, 2006, p. 483). It should be directed at meeting the assumptions of Restorative Justice which, in the words of Mccold and Wachtel (2003, no page),

focuses on repairing the damage caused to people and relationships, rather than punishing the offenders. [...] Restorative practices offer those who were harmed by an incident, the opportunity to meet and express their feelings, describe how they were affected and engender a plan to repair the damage or prevent its recurrence.

In order to explain their theory on Restorative Justice, the authors constructed the “Social Discipline Window”, where they discuss disciplinary approaches that could be punitive, negligent, permissive or restorative, depending on how the supervisory actions are conducted. In this construction, the authors argue for a balance between control and support, as a practice reasoned on punishment or retribution focuses on heavy control and low support, relegating the action to pedagogy of revenge and blaming of individuals. With negligence being the case when these two parameters – control and support – are low, featuring interventions characterised by indifference. Actions are permissive or rehabilitating when there is low control and strong support – justifying and protecting the offenders from the consequences of their acts. Action becomes restorative when there is strong control and strong support.

To this end, Law 12.594, in Article 35, sections II and III, discusses the “exceptional nature of judicial intervention and the imposition of measures, favouring means of self-mediation of conflicts”, and determines that socio-educational care should prioritise “[...] practices or measures that are restorative and, whenever possible, meet the needs of the victims.” (BRAZIL, 2012). United Nations Resolution 2002/12 of 24 July 2002 (UN, 2002) stands out in the international normative sphere, presenting the Basic Principles on the use of Restorative Justice Pro-

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grammes in Criminal Matters, which may be any programmes using restorative processes aimed at restorative outcomes.

In Brazil, Restorative Justice was institutionalised in 2016, by National Council of Justice Resolution 225 (CNJ, 2016), establishing the National Policy on Restorative Justice under the Judiciary. However, historical records point to the “Jundiaí Principle”, emerging in 1998, focused on conflict settlement in school environments as the hallmark of its introduction in the country. Reference is also made to the studies conducted by Prof. Pedro Scuro Neto, in 1999, in the context of the Judiciary in the State of Rio Grande do Sul. The first experience of applying restorative practice occurred shortly after, in the city of Porto Alegre, RS, in 2002, in the context of a conflict involving two adolescents, which became known as the “Zero Case”, conducted in the 3rd Section of the Children and Juvenile’s Court (ORSINI; LARA, 2013).

It was found that Restorative Justice showed broad and diverse interpretations and understandings about what it is and its purpose; where it can or cannot be applied; how it should or should not be implemented. In the midst of a scenario of dismantlement of rights — highlighting discourses that validate and accomplish violence levered on the ascension of political positions to the far right, disseminated and entrenched in common sense as truths and urgent needs —, it was stressed that it was necessary to consider the risk that, under these circumstances, Restorative Justice and its practices could be co-opted to enforce traditional punitive daily justice, becoming a mechanism of enlargement of social control of poverty.

The empirical data were examined using Discursive Textual Analysis, based on Roque Moraes (1999; 2003) and Roque Moraes and Maria do Carmo Galiazzi (2011). The deconstruction, reading and detailed analysis of the spoken transcripts and answers received via the online questionnaire, combined with the bibliographic and documental references used in the study framework, underpinned the content described and analysed throughout the theoretical chapters.

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In view of the conceptual and analytical diversity and inconsistencies found in the theoretical study, it was evident that this should be reflected in the collected empirical data, indicating weaknesses in the formation of foundations, both about Restorative Justice and concerning Socio-Economic Measures in an Open Environment (MSE-MA), and relationship between the two. In this context, contradictions emerged, manifest in conservative conceptions about the purposes of Restorative Justice that, in its relationship with the MSE-MA, is moving towards social control, through the social adjustment of adolescents. In the meantime, signs emerged simultaneously around the possibility of reducing the violence in socio-educational care and the achievement of co-accountability by all – not merely the accountability of the adolescents, but also of the State, Social Policies and network of these services and assurance of rights – in view of the causes and consequences of the offences.

The narratives stressed the social dimensions of violence, not only physical but also symbolic, that pervade the daily work of socio-education and the interpersonal relations in the context of this work, perpetuating the punitive vision and positioning against adolescents that commit offences. Combined with the insufficiency of human resources, weakened employment contracts and other issues, these aspects interfere in the socio-educational services, affecting the possibilities of establishing and enforcing restorative practices in socio-education in an open environment.

Conclusion

Combining all the legal progress concerning the rights of children and adolescents, the Statute and the SINASE towards the design of socio-education as an alternative system to that of criminal punishment, the actual result is a juvenile justice system. Where, in this scenario, restorative practices can be punitive, with social control and reduce the damage of violence historically portrayed by socio-education, marked by punitive and supervisory practices in the follow-up of children and adolescents.

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We found an ongoing presence of a contradictory movement in this mediation between Restorative Justice practices and Socio-Economic Measures in an Open Environment, with a clear presence of conservative purposes in the Restorative Justice, in its practices and in the Socio-Economic Measures in an Open Environment, directed at the social adjustment of the adolescent. At the same time, Restorative Justice, based on its principles and values, emerges as an alternative to punitiveness, an opportunity to reject prejudice and humanise the care provided to adolescents serving Socio-Economic Measures in an Open Environment.

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