La justicia juvenil restaurativa en Argentina: discursos y dilemas de un enfoque en ebullición

What this is about

This article reconstructs the arguments with which different actors in Argentine juvenile criminal justice promote the restorative approach. It is based on a corpus of 33 in-depth interviews with judges, prosecutors, defense counsel, members of technical teams, and members of restorative programs, and on documents from four programs in the province of Buenos Aires. The authors, CONICET researchers, adopt a socio-anthropological perspective and analyze these discourses in a paradoxical context, where advances in rights coexist with punitive demands. They place the Argentine case in the Latin American debate on importing the approach from the Global North and its possible absorption by traditional justice. It is addressed to those who research, design, or evaluate youth justice programs and seek a view that goes beyond the normative.

Annotated table of contents

• Introduction. Notes that in Argentina the subject entered the political and legal agenda only a few years ago and that the first nationwide guideline dates from 2018. Presents the aim of reconstructing the meanings mobilized by those who promote the approach and explains how the article is organized.
• Restorative justice and the Latin American question. Reviews the origin of the approach in the Global North, its expansion in Europe, and recent critiques of its limits. Collects the particularities of Latin America: violence and punitiveness, limited community and victim participation, and the risk of the approach being absorbed by traditional justice.
• The Argentine case. Reviews Law 26.061 of 2005 and the continued validity of Decree-Law 22.278 of 1980, as well as data from a 2018 UNICEF study on alternative measures in the country. Places the National Protocol on Restorative Juvenile Criminal Mediation and Restorative Agreements, presented in 2018, and the 2019 bill, which lowered the age of criminal responsibility to 15, in a political climate of hardening on security matters.
• Fieldwork. Describes the corpus of interviews and documents, the criteria for selecting them, and the profile of the people interviewed. Explains the method of qualitative content analysis of networks of meaning.
• Keys to restorative inclusion in juvenile justice. Identifies two axes in the discourses, accountability and the relationship with traditional justice, with the place of victims and the community as secondary aspects. In «Accountability: a key notion» it shows that what is sought is a subjective process based on empathy, while victims appear mainly through their effect on the adolescents. In «Justice: between the traditional and the restorative» it distinguishes a majority position, which sees the approach as a complement for minor cases, from a more radical one that conceives of it as an early solution and as cultural change.
• The shadows of restorative justice. Returns to Patricia Gray's warnings about the risk of accountability becoming a moralizing technique. Argues that the programs recognize the social vulnerability of young people but center the intervention on their individual transformation and leave undiscussed the gender and class selectivity of the criminal justice system.
• Possible drifts and open questions. Asks whether the more limited versions of the approach can be accommodated in a more punitive regime. Proposes balancing individual intervention with participation of victims and the community, and warns that delegating decisions to victims without sensitization work can reinforce punitive responses.
• Notes. Detail the research projects from which the article originated, the international instruments cited, and the characteristics of the programs to which the people interviewed belong.
• References. Gather the Latin American, European, and Anglo-Saxon bibliography used.

Key ideas

• In Latin America the restorative approach arrives from within the Judiciary itself, which exposes it to being subordinated to the logic of traditional justice.
• In Argentina, restorative practices with adolescents are diverse, little institutionalized, applied mainly to minor offenses, and include victims very little.
• The expansion of the approach coincided with debates on lowering the age of criminal responsibility, and it was even included in a punitive-oriented bill.
• Accountability is the central argument of those who promote the approach, understood as a subjective process of recognizing the harm caused to another person.
• Victims occupy a smaller place in the discourses than general definitions promise, and are valued mainly for their effect on the adolescents.
• Among those who promote the approach, a complementary view, focused on easing court congestion, coexists with another that presents it as a first response and as cultural change.
• Centering the intervention on individual transformation without addressing social conditions can reproduce inequalities.
• The gender, class, and age selectivity of the criminal justice system remains unproblematized in the local debate.

Practical uses

• What is meant by accountability in a restorative youth program, and how does it differ from the attribution of responsibility by a judge?
• What risks are involved in applying restorative practices only to minor offenses within the criminal justice system?
• What real place do victims have in restorative youth programs in Argentina?
• How should the social conditions of adolescents be considered when designing a restorative intervention?
• What effects might requiring the victim's consent to apply restorative measures have?

Key terms

restorative youth justice, juvenile criminal justice, subjective accountability, victims, juvenile criminal mediation, diversion from the judicial system (desjudicialización), alternative measures, punitiveness, age of criminal responsibility, national protocol on juvenile criminal mediation, Latin America, penal selectivity, discourse, Argentina