Restorative Justice

As with everything else created by mankind, our criminal justice system is less than perfect.  Some groups argue we need harsher punishments; some argue more needs to be done for victims; some point out how costly our current system is.  But, most, if not all, would agree that the criminal justice system should be 1) making victims whole again, 2) holding offenders accountable, 3) designed to reduce repeat offenses, and doing all this with the least amount of cost possible to the taxpayers.

Let's start with the first goal of making victims whole again.  Our current criminal justice system falls quite short in this regard.  In many situations, the prosecutor's office asks the victim to complete a Victim Impact Statement, asks he or she to itemize financial damages they've suffered, and allows he or she to testify at the trial and to speak the at sentencing.  In all of this, the victim's voice is minimized, and he or she has no real say in the outcome.  Restorative Justice, however, brings the victim to the center of the process, and allows he or she a real opportunity to be heard.  Moreover, with any crime, the victim may need answers ("Why me?"), financial restitution, a restoration of power, closure and healing.  The criminal justice system does not fulfill all of these needs; Restorative Justice, on the other hand, can.

The second goal of holding offenders accountable is also best served through the Restorative Justice approach.  If the criminal case is dismissed on procedural grounds, the offender is not held accountable at all.  If the offender takes a plea deal, chances are he or she is not receiving the "full" punishment, as defined by law for the originally charged crime.  And if pleading to a "lesser" offense, the offender is not even required to admit his or her actions which constituted the originally charged crime.  Even in a "typical" criminal case, where the offender pleads guilty as charged or where a jury finds him or her guilty as charged, and he or she is sentenced according to the law (or sentencing guidelines), offenders are often not held fully accountable.  Take a misdemeanor assault and battery charge, for example, where the offender pleads guilty and is sentenced to 90 days in jail and payment of a $500 fine.  With jail time and a fine, the offender is not held accountable for making the victim whole again.  Is the offender forced to face the victim and admit to what he or she did to harm the victim?  In this traditional criminal justice case, the offender is also most likely not required to identify all other people his or her actions have negatively affected, nor what steps he or she need to take to account for those harms.

Reducing the number of repeat offenses is also an important goal.  As with accountability, if the criminal case is dismissed on procedural grounds, the offender is not likely dissuaded from committing future criminal acts.  If the offender takes a plea deal, pleading to a "lesser" offense, the offender is likely learning more about negotiating and "playing the system" than he is about the importance of avoiding future criminal behavior.  Even in a "typical" criminal case, where the offender pleads guilty as charged or where a jury finds them guilty as charged, and he or she is sentenced according to the law (or sentencing guidelines), offenders often fail to learn the value of avoiding future criminal behavior.  Either the sentence (or "punishment") was "light" enough that the offender sees it as an acceptable consequence of "doing business as usual," or the sentence was perceived as so harsh, that it destroys the confidence the offender has in the criminal justice system, and that, in turn, invalidates for the offender using our laws to define what acceptable behavior should be.  In either situation, the offender has no "buy-in" to the criminal justice process, and has no incentive to avoid future criminal behavior.  Conversely, the Restorative Justice process builds in the incentive by centering on which people the offender has harmed (including themselves) and in which way he has harmed them.  By addressing "what must be done to make things right," the offender is enabled to see the connection between a drug treatment or anger management program, for instance, and the effect completing such a program would have on those around him or her.  Yes, Drug Treatment Court, Veterans Treatment Court, Mental Health Court, and other specialty courts are being established, but Restorative Justice addresses the root cause of the criminal behaviors, while simultaneously allowing the victim to remain an active participant in the process.  Of course, for situations in which there is no named victim, the use of these specialty courts within the framework of the traditional criminal justice approach, is a great way to address underlying causes, thereby reducing repeat offenses.

To get the most out of this discussion, we need to understand the basics of each system.  In a typical criminal justice case, an offender is arrested, arraigned, given a Pre-Trial Conference, a Jury Trial, and a Sentencing.  There are, of course, variations of this timeline, from jurisdiction to jurisdiction.  Furthermore, at any point along the way, the case could be dismissed by the prosecutor, or the offender could take a plea deal.  In a Restorative Justice scenario, the restorative practices can be employed at varying stages of the case, but a good time to begin the process and establish a timeline for the restorative practices would be at or after the arraignment.  If this is done, the roles of the prosecutor, judge, and jury are reduced or eliminated, and a Restorative Justice facilitator is utilized to center the process around the victim(s) and offender(s).

In simplified terms, a Restorative Justice session begins with all participants sitting in a circle, with no furniture or other barriers between them.  Everyone has an opportunity to speak, and to be un-interrupted while speaking.  The discussion begins with articulating "what happened?".  The participants then recognize who was harmed and how.  Answers are identified as to what needs to happen to make things right, and if necessary, who is responsible for this "repair."  Throughout this process, the focus is not to establish guilt and exact punishment, but to provide an opportunity for the offender to take responsibility, recognize what their obligations are, and to make amends.

In utilizing Restorative Justice properly, we must remember that it is not a quick fix, and requires strategic planning and implementation.  Nonetheless, when used effectively, Restorative Justice reduces the number of court appearances, which reduces the financial burden to taxpayers for court personnel, the prosecuting attorney's time, public defender costs, jury reimbursements, etc.  More often than not, the Restorative Justice process reveals that the goals of making the victim whole, holding the offender accountable, and reducing repeat offenses are best served by mechanisms other than jail time or standard probation.  And, obviously, reduced jail time means a reduced financial burden for taxpayers.  Additionally, when Restorative Justice is effectively employed, and repeat offenses are reduced or eliminated, costs for these future victims and courts are reduced or eliminated.  When an offender is working on "making it right" in situations where the victim is a neighborhood or society as a whole, community service and other tools can be utilized to bring value back to the community.

Obviously, there are occasions when an offender does not accept responsibility for his or her actions.  In these situations, the traditional criminal justice process remains the most just mechanism available for testing the evidence and determining what outcomes are necessary.  There are also circumstances in which the accused person is not guilty, and while the Restorative Justice process may be able to sort all that out, and bring final resolution to the victim and the accused person, here too, it may be more appropriate for the matter to be entirely handled within the parameters of the traditional criminal justice system.

Additionally, restorative practices can be utilized not only in criminal cases, but also juvenile delinquency cases, school offenses, workplace disagreements, conflicts between nursing homes and concerned family members, and more.  As stated in a recent article, "When we are talking about student discipline traditionally, we ask, 'What was the rule? Who broke it? What is the punishment?' [With Restorative Justice] we're asking, 'What happened? Who was affected or harmed, and what needs to be done to repair the harm and keep it from happening again?'" Shouldn't the point of ALL types of discipline/punishment (for children and adults alike) be to make victims whole again and prevent the injury or "bad occurrence" from happening again?  That's what Restorative Justice does.

If you want to want to use restorative practices in your situation, email us or fill out the appropriate Contact Us form.