CQR Restorative Justice - antoniocasella.eu · 2016. 12. 4. · .cq resa h om Feb.w 5, 2016 123...

Restorative JusticeCan it help victims and rehabilitate criminals?

As calls for criminal justice reform grow louder,

some social workers, religious leaders and legal

experts want to expand the use of an alternative,

nonpunitive system of justice for cases ranging

from student conflicts to assaults involving adults. They say that

“restorative justice,” through “peace circles,” mediation and other

methods, promotes conciliation and remediation by bringing of-

fenders, victims and community members together to determine

how best to help victims and rehabilitate offenders. Advocates say

restorative justice can potentially reduce repeat offenses, incarceration

rates and court costs. But critics, including some prosecutors, deride

it as a soft-on-crime approach that won’t work for violent crimes

such as assault. They also disagree with proponents’ claims that

restorative justice programs can heal victims or keep career criminals

from returning to prison. All sides agree more research is needed

to determine whether restorative justice can one day help transform

the nation’s criminal justice system.

Tiago Robinson, in charge of the ManhoodDevelopment Program at Oakland High School inCalifornia, passes a Hacky Sack to students to signifythey can ask or answer questions during a programaimed at teaching African-American boys how tobecome responsible men. The program usesrestorative justice principles that emphasizeaccountability and peaceful conflict resolution.

CQ Researcher • Feb. 5, 2016 • www.cqresearcher.comVolume 26, Number 6 • Pages 121-144

RECIPIENT Of SOCIETY Of PROfESSIONAL JOURNALISTS AwARD fOREXCELLENCE � AmERICAN BAR ASSOCIATION SILvER GAvEL AwARD

I

N

S

I

D

E

THE ISSUES ....................123

BACKGROUND ................129

CHRONOLOGY ................131

CURRENT SITUATION ........136

AT ISSUE........................137

OUTLOOK ......................138

BIBLIOGRAPHY ................142

THE NEXT STEP ..............143

THISREPORT

Published by CQ Press, an Imprint of SAGE Publications, Inc. www.cqresearcher.com

122 CQ Researcher

THE ISSUES

123 • Does restorative justice reduce recidivism?• Should restorative justicebe used in cases of violentcrime?• Can restorative justice address racial disparities inthe criminal justice system?

BACKGROUND

129 Ancient CirclesIndigenous groups met incircles to repair harm doneto victims.

130 Evangelical PushA former presidential aidefounded the restorative Prisonfellowship program in 1976.

134 International MomentumThe Thames valley Police pioneered restorative justicein the U.K. in the late 1990s.

CURRENT SITUATION

136 In CommunitiesU.S. school systems are ex-panding restorative practices.

136 On CampusesSome experts say offeringrestorative justice on collegecampuses could help sexualassault victims and offenders.

138 At the National Levelfederal laws support restora-tive justice for juveniles andgang members.

OUTLOOK

138 Hard Work AheadInstitutionalizing restorativejustice will require strongerinfrastructure and communitysupport, experts say.

SIDEBARS AND GRAPHICS

124 Majority of States HaveRestorative Justice LawsThirty-three states have lawsthat require or mention someform of restorative justice.

128 Study: Conferencing CutJuvenile CrimeRestorative conferencinghelped reduce recidivismamong juvenile offenders inAlameda County, Calif.

131 ChronologyKey events since 1974.

132 Restorative Justice Gets a‘P’ for ‘Promising’“Students are learning whatconflict resolution reallymeans.”

134 Truth and ReconciliationPanel Sought“It’s an idea whose time hascome,” says its leading pro-ponent.

137 At Issue:Could restorative justice reduceU.S. incarceration levels?

FOR FURTHER RESEARCH

141 For More InformationOrganizations to contact.

142 BibliographySelected sources used.

143 The Next StepAdditional articles.

143 Citing CQ ResearcherSample bibliography formats.

RESTORATIvE JUSTICE

Getty Images/The Christian Science Monitor/Ann Hermes

EXECUTIVE EDITOR: Thomas J. [email protected]

ASSISTANT MANAGING EDITORS: maryann Haggerty, [email protected],

Kathy Koch, [email protected], Chuck mcCutcheon,

[email protected], Scott Rohrer, [email protected]

SENIOR CONTRIBUTING EDITOR:Thomas J. Colin

[email protected]

CONTRIBUTING WRITERS: Brian Beary, marcia Clemmitt, Sarah Glazer, Kenneth Jost,Reed Karaim, Peter Katel, Barbara mantel,

Tom Price

SENIOR PROJECT EDITOR: Olu B. Davis

ASSISTANT EDITOR: Ethan mcLeod

INTERN: molly mcGinnis

FACT CHECKERS: Eva P. Dasher, michelle Harris, Nancie majkowski,

Robin Palmer

An Imprint of SAGE Publications, Inc.

VICE PRESIDENT AND EDITORIAL DIRECTOR,HIGHER EDUCATION GROUP:

michele Sordi

EXECUTIVE DIRECTOR, ONLINE LIBRARY AND REFERENCE PUBLISHING:

Todd Baldwin

Copyright © 2016 CQ Press, an Imprint of SAGE Pub-

lications, Inc. SAGE reserves all copyright and other

rights herein, unless pre vi ous ly spec i fied in writing.

No part of this publication may be reproduced

electronically or otherwise, without prior written

permission. Un au tho rized re pro duc tion or trans mis -

sion of SAGE copy right ed material is a violation of

federal law car ry ing civil fines of up to $100,000.

CQ Press is a registered trademark of Congressional

Quarterly Inc.

CQ Researcher (ISSN 1056-2036) is printed on acid-free

paper. Pub lished weekly, except: (march wk. 4) (may

wk. 4) (July wks. 1, 2) (Aug. wks. 2, 3) (Nov. wk. 4)

and (Dec. wks. 3, 4). Published by SAGE Publications,

Inc., 2455 Teller Rd., Thousand Oaks, CA 91320. Annual

full-service subscriptions start at $1,131. for pricing,

call 1-800-818-7243. To purchase a CQ Researcher report

in print or electronic format (PDf), visit www.cqpress.

com or call 866-427-7737. Single reports start at $15.

Bulk purchase discounts and electronic-rights licensing

are also available. Periodicals postage paid at Thousand

Oaks, California, and at additional mailing offices. POST -

mAS TER: Send ad dress chang es to CQ Re search er, 2600

virginia Ave., N.w., Suite 600, wash ing ton, DC 20037.

Feb. 5, 2016Volume 26, Number 6

Feb. 5, 2016 123www.cqresearcher.com

Restorative Justice

THE ISSUESIn middlesex County nearBoston, communities arebringing some young first-time offenders face to facewith their victims to come upwith ways to make reparationsand to get on the right pathtoward rehabilitation. Juvenileswho are selected by the districtattorney for this “restorativejustice” program have a chanceto wipe their arrest recordclean and avoid court — pro-vided they follow through withthe program — while theirvictims get a say in the processand a chance to heal.

Susan maze-Rothstein, a lawprofessor at Northeastern Uni-versity in Boston, along withother supporters, has spentfour years lobbying massachu-setts legislators to pass a bill,introduced by Democratic Sen.Jamie Eldridge, that would ex-pand the use of restorativejustice programs and allowmore communities, rather thancourts, to handle crimes committed byjuveniles and possibly adults and helptheir victims.

Her organization, Our Restorative Jus-tice (OurRJ), works with the district at-torney in middlesex County to givesome young offenders a chance to facetheir victims and work with communityrepresentatives to make reparations fortheir harm and get on a better path. 1

Programs like maze-Rothstein’s —which use various methods to promoteconciliation and remediation over pun-ishment — can assist offenders andvictims alike, she says. As a bonus,implementing restorative justice canhelp reduce court costs and relieveovercrowded prisons, a major focus ofthe national discussion on criminal jus-tice reform.

“Those who are concerned aboutthe cost of incarceration . . . are in-terested in such lower-cost approaches,”says maze-Rothstein, board presidentand chair of OurRJ, centered in Lowell,mass., which has a high immigrantand minority population. “Then thereare those people who are actually con-cerned about justice and fairness insociety, about reparation for untoldgenerations of harms that have beendone to . . . marginalized communities,”she says, adding that OurRJ hopes toexpand to serve more minorities inneighboring Suffolk County.

Since the 1970s, social workers, crim-inal justice experts and faith-basedgroups in a scattering of communitiesand prisons around the world havebeen studying and testing various types

of restorative justice — basedon principles of indigenousand ancient western cultures— to address a range of crimes.Now advocates of the prac-tice want it expanded in theUnited States to help reducerecidivism, halt a so-calledschool-to-prison pipeline, re-verse a trend toward massincarceration, lower prisoncosts and eliminate racial dis-parities in the justice system.

But critics are skeptical thatrestorative justice can do allthat, and they say it won’twork for violent crimes suchas assault.

matt DeLisi, coordinator ofcriminal justice studies at IowaState University in Ames, says,“To me, it’s a form of diver-sion” from the criminal justicesystem. “It’s nice and kind ofmeaningful,” but it won’t have“a huge impact” on incarcer-ation levels.

“Is it a solution to all ourproblems? No,” says mark A.R. Kleiman, a professor ofpublic policy at New York

University. 2 He and Kathleen Daly, acriminal justice professor at GriffithUniversity in Brisbane, Australia, sup-port restorative justice but warn thatit can be applied only to a limitednumber and type of offender, victimor crime. 3

former federal prosecutor william G.Otis, an adjunct Georgetown Universitylaw professor, is more critical: He callsrestorative justice a “soft-on-crime” ap-proach that amounts to merely “innovativedialogue” to stop imprisonments.

Restorative justice programs bringoffenders face to face with their victims— with the consent of both parties —through various methods, including:

• victim-offender mediation, inwhich a facilitator oversees a meetingbetween the two.

BY CHRISTINA L. LYONS

Get

ty Im

ages

/The

Asa

hi S

him

bun

Howard Zehr, co-director of the Zehr Institute forRestorative Justice at Eastern Mennonite University inHarrisonburg, Va., is widely considered the “grandfather”of the restorative justice movement. He stresses that incriminal cases, restorative justice programs should meetthe needs of victims and hold offenders accountable.

124 CQ Researcher

• Peace, or healing, circles, in whichparticipants — including the offender’sfamily or community members — sitin a circle to discuss the offense, howvictims were affected and how theoffender should make amends.

• Group conferencing, in which thevictim and offender meet with commu-nity or group representatives to discussthe crime and determine how to holdthe offender accountable and to helpthe offender rehabilitate and reintegrateinto society.

• Reparative boards, panels of localrepresentatives that confront the of-fender, discuss the crime and devisea contract detailing what the offendermust do to “right the wrong.”

Those involved in each method devisea plan, approved by law enforcement

officials or a judge, to remediate theoffense and ensure the offender followsthe plan. failing to abide by the plancan land an offender back in court. 4

Law enforcement agencies or courtsmay offer offenders and victims suchalternatives before an arrest is made,before or after a conviction or duringincarceration, depending on the agree-ment with the justice system or statelaws and whether the offender is willingto take responsibility. A resulting agree-ment could include imprisonment orpayment of restitution.

Practitioners cite New Zealand as amodel because it requires, by statute,that all youth offenders — other thanmurderers — be offered a restorativejustice alternative. Such methods alsohave been practiced in Australia, Cana-

da, the United Kingdom, Belgium andelsewhere. 5

At least 32 states have statutes thatinclude language on restorative justice,ranging from statements of support toa structure for its use. 6 (See map, atleft.) more communities have been testingthe concept since then-U.S. AttorneyGeneral Eric Holder called in 2013 fora “smart on crime” campaign to addressa rising prison population. 7

The state and federal prison popu-lation increased more than fivefold be-tween 1980 and 2013, from 503,600 tonearly 2.9 million. 8 The population inlocal jails rose from 184,000 in 1980 tomore than 785,000 in 2008, before drop-ping to just over 731,200 in 2013. Althoughthe total number of state and federalprisoners fell to 2.2 million by 2013 —the lowest level since 2005 — the UnitedStates still has among the highest incar-ceration rates in the world. 9

moreover, the recidivism rate is high.while about 650,000 prisoners are re-leased annually, some two-thirds ofthem return to prison within threeyears. 10 warning that “we cannot pros-ecute our way to becoming a safernation,” Holder, when announcing the“smart on crime” campaign, called forreserving the harshest penalties for themost violent criminals and seeking al-ternatives for nonviolent offenders.

Obama administration officials alsourged schools to end harsh zero-tolerancepolicies, implemented in the late 1990safter a rash of school shootings. Theadministration said the policies dispro-portionately target minority and disabledstudents, in some cases creating a“school-to-prison pipeline.” 11

The Justice Department already hadsupported the use of restorative justicefor juveniles and increasingly promotedsuch alternatives. many faith-based groups,whose philosophies of forgiveness alignwith restorative justice principles, hadbeen pushing the concept for a rangeof incarcerated offenders. 12

while the Christian community haslong backed the goals of restorative

RESTORATIvE JUSTICE

Alaska

Hawaii

Majority of States Have Restorative Justice LawsSince 1988, 33 states — most recently West Virginia — have enacted laws that require or mention some form of restorative justice. Colorado, Vermont and several other states mandate funding for such programs and spell out staffing requirements. Twelve states have statutes that refer to restorative justice or its core principles but do not require implementation.

N.Y.

Ohio

Texas

Va.

Minn.

Iowa

Mo.Calif. Nev.

Ore.

Colo.

Wash.

Idaho

Mont.

Utah

Ariz. N.M.

Wyo.

N.D.

S.D.

Okla. Ark.

La.

Ill.

Miss.

Tenn.

Ga.

Conn.

Mass.

R.I.

MaineVt.

W.Va. N.J.

Del.

Md.

Ala.

Fla.

Wis.

Mich.

Ind.

N.C.

S.C.

N.H.

Kan.Ky.

D.C.

Neb.Pa.

Sources: Shannon Sliva and Carolyn Lambert, “Restorative justice legislation in the American states: A statutory analysis of emerging legal doctrine,” Journal of Policy Practice, April 7, 2015, pp. 77-95, http://tinyurl.com/jzywj9j; “Gov. Tomblin signs bill to launch comprehensive juvenile justice reform in West Virginia,” The State Journal, April 2, 2015, http://tinyurl.com/jb9c7wr

States with Restorative Justice Statutes


justice, Catholic Church leaders urgedU.S. officials to look more closely at thealternative after Pope francis told Con-gress last year that he supported a globalabolition of the death penalty because“a just and necessary punishment mustnever exclude the dimension of hopeand the goal of rehabilitation.” 13 manypointed to the forgiveness that survivorsand families of victims of a 2015 shoot-ing of nine black parishioners at achurch in Charleston, S.C., offered tothe alleged gunman. 14

Howard Zehr, a retired restorativejustice professor at Eastern mennoniteUniversity in Harrisonburg, va., whois considered the “grandfather ofrestorative justice,” initially advocatedfor restorative justice from a Christianperspective. But now Zehr, who co-directs the Zehr Institute for RestorativeJustice at Eastern mennonite, says thefaith-based pressure for forgivenessmisleads the public about what restora-tive justice seeks to do.

The priority, Zehr says, should al-ways be the needs of the victim, aswell as holding the offender account-able and making sure he or she un-derstands the impact of the crime onthe victim and community. Reducedrecidivism, he says, is a byproduct ofrestorative justice.

Researchers measure restorative jus-tice’s success by its ability to help victimsand lower recidivism rates. Several stud-ies find some positive effects on bothmeasures. 15

“Of course, it’s not that victims feeleuphoria after such a meeting, but atleast they feel better than when theygo through the traditional [criminal jus-tice] process. It’s an absolute findingthat comes back all the time,” saysLode walgrave, emeritus professor ofcriminology at the University of Leuvenin Belgium.

Yet other studies, such as a 2013review in Australia by the New Southwales Bureau of Crime Statistics andResearch, conclude that researchers haveprovided little evidence that restorative

justice either reduces recidivism or pro-vides greater satisfaction for victims thanif the cases had gone through the tra-ditional legal process. 16

michael Rushford, president of theSacramento, Calif.-based Criminal Jus-tice Legal foundation, which advocatesfor a “swift and decisive system of jus-tice,” says victims of violent crimesnever really heal.

The National Center for victims ofCrime, based in washington, has lobbiedfor criminal justice reforms that helpvictims. It supports the development ofrestorative justice approaches but warnsthat many such programs do not fullyfocus on the victims or allow them tocontrol how they participate. 17

“Restorative justice is fine, providedthe victim is in favor of it,” says maifernandez, executive director of thecrime victims’ center. while many victimsmay not want to face an offender, shesays, others do. “Some victims are lookingfor some sort of remorse or apology.There’s many situations where, like ina homicide situation, you may not reallywant to see the person who killed yourloved one, but in some situations youwant to understand why they did this,”witness the offender’s expression of re-morse and receive an apology.

Steve martin, a corrections consultant,prison monitor and attorney in BrokenArrow, Okla., says, “from the first I everheard of the concept, I said this shouldnot be couched at all as victim-oriented;it should be couched as justice-oriented,which services all stakeholders — thevictim, the offender, the courts.”

But many in law enforcement “viewrestorative justice with a jaundiced eye,seeing it as nothing more than hand-holding that does not address the realreasons for criminality,” wrote DianamcKibben, a restorative justice practi-tioner, and Phil Penko, a former mon-terey, Calif., police chief. 18

william wood, a criminal justiceprofessor at Griffith University in Aus-tralia, suggests the problem is morecomplicated in the United States, where

the government’s policing and sentenc-ing policies support a get-tough-on-crime culture and emphasizes prisonover rehabilitation. Restorative justiceis a “well-thought-out alternative” incertain cases, he says, but by itself itcannot transform the U.S. culture andreduce incarceration levels.

Prisons are not the result of indi-vidual behaviors, wood says. “They’rethe result of political regimes” that havebuilt discriminatory policing practicesand tough sentencing laws.

As the debate continues, researchers,social workers, legal experts and localand state officials are asking these keyquestions:

Does restorative justice reducerecidivism?

The bill backed by OurRJ in massa-chusetts seeks to “reduce recidivismand the risk of more serious crimesin the future that may require a moreintensive and costly response from thelegal system, such as prosecution andincarceration.” 19

The bill in past years has failed togain sufficient support to reach the Sen-ate floor, largely due to other policypriorities of legislative leaders and, maze-Rothstein believes, a limited understand-ing of restorative justice programs andtheir ability to reduce recidivism.

Sujatha Baliga, director of theRestorative Justice Project for the non-profit group Impact Justice in Oakland,Calif., insists restorative justice does re-duce recidivism.

She started a community confer-encing program in 2008 for youths inAlameda County, where Oakland islocated. Schools, law enforcement of-ficials and district attorneys can selectjuvenile offenders before they are ar-rested and give them the option ofentering a three- to six-month restora-tive justice program rather than faceprosecution.

The diverted youths are accused ofa range of offenses, Baliga says, includingcrimes for which they could be charged

126 CQ Researcher

as adults in some other states, such asburglary or assault.

The program handles about 100youths annually and has a recidivismrate of 11.8 percent, compared with31.4 percent for juvenile offenders inthe regular justice system, accordingto Baliga. further, African-Americanboys show the highest success rate. 20

In vermont, low-level offenders canappear before community reparationboards, says Derek miodownik, therestorative and community justice ex-ecutive for the state Department ofCorrections. Those who appear beforethe boards typically do not reoffend,according to a progress report on theprogram. 21 miodownik, however, sayshe is reluctant to attribute all of thesuccess to restorative justice.

“It might be because they have agreat relationship, they got a great job,completed a drug program,” he says.

In Belgium, walgrave led an exper-imental family conferencing programfrom 2000 to 2003 with five judgeswho selected the juvenile cases. Evi-dence indicates that about 22 percentof those juveniles committed crimesagain, compared with 58 percent ofjuveniles who went through the courtsystem, he says. 22 The program wasthen expanded to all courts.

But allowing judges or law enforce-ment officials to select cases for restora-tive justice limits its potential, walgravesays, because they typically don’t pickviolent offenders. many researcherspoint to the progress in New Zealand,where young offenders accused of anycrime other than murder must be al-lowed to opt for restorative justice.The New Zealand ministry of Justicereported that “restorative justice had astatistically significant impact on thenumber of offenders who reoffendedand, for those who did reoffend, thefrequency of that offending.” 23

But results elsewhere have beenmixed. A group of researchers fromthe United Kingdom, the United States,Australia and Israel — led by Lawrence

Sherman, director of Cambridge Uni-versity’s Institute of Criminology — re-viewed results from 10 randomizedtrials of restorative justice conferencingand concluded the programs produceda “modest but highly cost-effective” re-duction in recidivism. 24

Sherman and Heather Strang, directorof the Centre for Restorative Justice atAustralian National University in Can-berra, had published an analysis in 2007comparing results of restorative justiceto conventional justice for juvenile andadult offenders charged with a varietyof crimes, including burglary, assault andarson. The results showed a “modest”reduction in recidivism. The researchersalso found that restorative justice, com-pared with prison, worked better atstemming recidivism among adults thanamong juveniles. But they also concludedthat the method “works differently ondifferent kinds of people,” and that moreresearch was needed. 25

Griffith University’s wood doubtsrestorative justice could noticeably lowerU.S. incarceration levels. These pro-grams, he says, often target young of-fenders who weren’t likely to reoffendanyway, particularly as they mature.

“Even if restorative justice resultsin some recidivism, most [perpetrators]would not end up committing offensesthat land them in jail anyway,” woodsays. “most youth commit one or twooffenses they are caught for, then theyage out,” or mature and stop misbe-having.

DeLisi of Iowa State says restorativejustice is “disproportionately more usefulfor youth.” But he says it can’t help allyouths. “I have known juvenile offendersthat had 100 [contacts with] police. Ifthey are 17 and had 90 contacts by thepolice, that’s who they are. They’re justa young career offender,” he says.Restorative justice for such offenders“would be a poor use of resources.”

martin, the corrections consultant inOklahoma, says typically he has seenrestorative justice applied for lower-level, nonviolent offenses.

“The screening and selection processis critical,” he says. “The average run-of-the-mill person” on a lifelong pathof crime “will tend to manipulate sys-tems like this,” he says, viewing it asa way to avoid prison.

for juveniles, poor parenting can give“rise to criminal lifestyles,” martin says,and restorative justice programs cannotmake up for a dysfunctional home life.

michael Braswell, a former prisonpsychologist and emeritus professor ofcriminal justice at East Tennessee StateUniversity, rejects the notion that offenderscould easily manipulate the process. “Alot of inmates would rather just do thetime” than go through all the requirementsof a restorative justice process — espe-cially having to face their victim andown up to what they did.

martin also says he has seen of-fenders turned around for a range ofreasons. “They experience somethingthat makes them feel better about whothey are than doing the crime.”

Should restorative justice be usedin cases of violent crime?

After 19-year-old Conor mcBride ofTallahassee, fla., shot and killed his fi-ancée Ann Grosmaire and turned himselfin to police, the victim’s parents, Kateand Andy Grosmaire, forgave mcBride.Then they and mcBride’s parents foundBaliga, the restorative justice practitionerin Oakland, and persuaded her to fa-cilitate a restorative justice meeting.

mcBride listened to the Grosmaires’pain, and they listened to his accountof an extended fight that began onefriday and continued through Sunday.The couple had spent the previousnight at mcBride’s parents’ house, wheretheir arguing continued until he pulledout a shotgun to shoot himself butkilled Ann instead. After the conference,Ann’s mother recommended a prisonterm of five to 15 years. She later saidshe had to forgive in order to go on.“when people can’t forgive, they’restuck. . . . forgiveness for me wasself-preservation.”

RESTORATIvE JUSTICE


The judge approved the recommen-dation, but extended the term to 20years. 26

Baliga, of Impact Justice in Oakland,says such a case “has never happenedagain” for her and that the Grosmaires’compassion for their daughter’s killeris highly unusual. But she says restora-tive justice can and should be appliedto a wide range of crimes, includingviolent crimes, to help victims and of-fenders and to devise appropriate pun-ishments. And ideally — although shesays she knows it would be difficult— Baliga would like to see it donebefore offenders are booked.

“Our biggest bang for recidivism andcost effectiveness is on the front end,pre-charge,” she says. “we need to bedoing restorative justice in a way thatactually reduces incarceration,” ratherthan focusing on low-level offenderswho likely would be diverted [away fromprison] anyway. Herman and Strang’s2007 study found that among some sam-ples, restorative justice appeared to reducerecidivism more effectively in violentcrimes than in less serious crimes. 27

Similarly, an analysis of Australia’srestorative justice program also foundthat it “may be more effective for moreprolific offenders and . . . for more se-rious offenders,” but researchers wereunclear why. 28

Practitioners have applied restorativejustice in some violent crime cases inthe United States, but typically it isused in corrections facilities when coun-selors are helping prepare prisonersfor reintegration into society or to helpheal victims. In vermont, where prisonersare often sent to local reparative boardsto discuss reintegration into the com-munity, the boards have found that ex-inmates “do better when they’re con-nected and receive support,” saysmiodownik of the Department of Cor-rections. vermont is looking to expandthe process to diminish recidivism.

Joan Pennell, a professor of socialwork at North Carolina State Universityin Raleigh, directs the university’s Center

for family and Community Engagement,which offers family group conferencingin cases of child abuse and, in someinstances, domestic violence.

The program uses the principles ofrestorative justice, she says. “It’s notwhere you just figure out who com-mitted maltreatment, but you [also] arefiguring out support for the family,”which may be facing situations of pover-ty or neglect, says Pennell, who workedas an investigator in Newfoundland fora family group conferencing program.During sentencing, judges can choose

whether to use a plan devised duringthe conference.

“we have developed extensive proto-cols for preparing people to participate,including a safety assessment” by a fa-cilitator to ensure that victims are notin danger of being revictimized, Pennellsays. If coordinators feel the processwould not be safe, they can cancelthe conference, but that rarely happens,she says. Often studies report high vic-tim satisfaction, as well as a reductionin recidivism. 29

Leigh Goodmark, a University ofmaryland law professor who also teach-es the school’s Gender violence Cliniccourse, said restorative justice can em-power domestic violence victims who

don’t want to see their partners pun-ished but who want an apology andthe abuse to stop. 30

Some groups representing domesticviolence victims say restorative justicecan help victims find a voice, help themheal and potentially keep families togetherif the abuser gets further help. It canalso provide an alternative for women— particularly those of color — whodo not feel safe calling the police. 31

Carrie Outheir Banks, a former shelterworker, founded Domestic violence SafeDialogue in Portland, Ore., to bring sur-

vivors and offenders together in dialogue,and she denies it is too traumatic forvictims. “These are people who havegotten up and lived through abuse everysingle day,” she said. “They’re strong.” 32

In a paper written on behalf of theNational Resource Center on Domesticviolence, James Ptacek, chairman ofthe sociology department at SuffolkUniversity in Boston, and Loretta fred-erick, senior legal and policy adviserfor the Battered women’s Justice Projectin minneapolis, suggest that restorativejustice could be a promising outlet fordomestic violence survivors. But theywarn that many programs focus noton the victims but the offenders. Theypoint to Pennell’s programs as more

Seventh-graders talk with two assistant principals and a counselor last Octoberabout a recent conflict at Ed White Middle School in San Antonio. Three years afterthe school started a disciplinary program that relies on restorative justice practices,out-of-school suspensions have fallen 72 percent, principal Philip Carney said.

AP

Pho

to/E

ric G

ay

128 CQ Researcher

promising, but also say much moreresearch needs to be done. 33

Some proponents of restorative jus-tice say it potentially could be usedin sexual assault cases, including onuniversity campuses, but others areskeptical.

In a study of youths charged withsexual offenses, Australian researchersfound a lower rate of reoffending amongthose who participated in a restorativejustice conference than those whowent to court. However, researchersalso attributed this result to the factthat the youths who were sent to courtinstead of to restorative justice programsoften had a criminal record. 34

mary Koss, a professor of genderand women’s studies at the Universityof Arizona, examined the RESTORE pro-gram in Pima Country, Ariz. — the firstrestorative conferencing program for sex-ual assault cases — and found a highnumber of female victims consented tomeet with their offender, but typicallyonly if the offender accepted responsi-bility. Koss provided “cautious optimism”for the program. 35

But Cynthia Alkon, a professor atTexas A&m University School of Law,worries that restorative justice couldmean the victim will have “a lot lesspower, and there is concern aboutthem being revictimized in the process.”She also questions whether all restora-tive justice facilitators are properlytrained to handle sexual assault cases.

Alkon says not all sexual assaultcases are appropriate for restorativejustice. “The whole theory underlyingrestorative justice is the offender shouldtake responsibility and repair the harmthat was caused,” she says. “If they’renot taking responsibility and denyingthey did anything, that’s not [a case]for a restorative justice process.”

All practitioners agree restorative jus-tice only works if the offender takesresponsibility and the victim wants toparticipate in the process. Some, likethe Criminal Justice Legal foundation’sRushford, are hesitant to use restorativejustice for any type of violent crimeunless the offender remains in confine-ment. He says the victim can obtainsome closure, but in other cases —

particularly sexual assault — the offendernever treats the victim as a human andcould try to manipulate the system.

DeLisi maintains that restorative jus-tice methods are “counterproductive”in serious crimes, including sexual as-sault cases, where you would be re-luctant to expose victims to their abuser.

“many [offenders] are really psycho-pathic, so there’s really no interest toengage with the crime victims,” DeLisisays. “At best they would go throughthe process . . . to victimize and hu-miliate the person involved.”

Heather mac Donald, a fellow at themanhattan Institute, a conservative thinktank in New York City, agrees thatrestorative justice has little effect onmany serious criminals. “There’s a lotof therapy happening in Rikers [Islandin New York City], and it’s had zero ef-fect,” she says. “So I’m not sure thatthis would do much different.”

Can restorative justice addressracial disparities in the criminaljustice system?

minority groups and others have beendemanding that officials address ongoingracial disparities in the U.S. justice system.

According to The Sentencing Project,a washington-based nonprofit that ad-vocates for criminal justice reform, morethan 60 percent of people in state andfederal prisons are racial and ethnicminorities. One in 10 prisoners is ablack male in his 30s, and a dispro-portionate number of minorities havecontact with the juvenile justice system,it said. 36 African-American studentsalso are suspended or expelled fromschool at three times the rate of whitestudents, according to the U.S. Depart-ment of Education. 37

Restorative justice proponents saytheir methods could help resolve thesedisparities, which some attribute to thefailure of the justice system to addressunderlying problems in communitieswhere systemic crime occurs. Other saythe disparity is the result of racial tar-geting by law enforcement agencies.

RESTORATIvE JUSTICE

Study: Conferencing Cut Juvenile CrimeAbout 27 percent of 102 Alameda County, Calif. (Oakland), juvenile offenders who completed restorative community conferencing from 2012 through 2014 were rearrested, compared with 45 percent of county offenders in the regular juvenile justice system. Restorative conferencing allows offenders to meet with community members and victims to create a plan to repair any harm done.

* Offender charged in juvenile court.

** Offender found guilty in juvenile court.

Source: “Scaling Restorative Community Conferencing Through a Pay for Success Model: A Feasibility Assessment Report,” National Council on Crime and Delin-quency, March 2015, p. 11, http://tinyurl.com/h7jv542

Petition sustained **Petition filed*Rearrested

Completed Restorative ConferencingHandled by Juvenile Justice System

26.5%

12.7% 11.8%

Outcomes for Arrested Juveniles

45%33.5% 31.4%


“Those communities are our society’smost harmed communities by the societalstructure that exists,” maze-Rothstein inmassachusetts says. 38 “So an empow-erment of those communities throughrestorative justice actually has greatvalue,” because it allows those commu-nities — rather than the courts — tohelp heal victims and offenders and de-termine how to make reparations.

fania Davis, co-founder and exec-utive director of Restorative Justice forOakland Youth, which develops school-based programs, says the process canhelp minority youths in high-crimeareas recover from psychological traumaand end cycles of criminal behavior.

“Trauma is pervasive in a city wherethe greatest cause of death is homicide. . ., in a city where so many of ouryouth, particularly youth of color, haveincarcerated parents,” she says. “we aredealing on a day-to-day basis with . . .racism, incarceration, substance abusein families and communities, . . . sexualviolence, domestic violence. It’s just per-vasive. The harm is everywhere, every-where you turn.”

Davis says the circle process — whichplaces the offender, victims and com-munity leaders in a circle to discuss thecrime, its effects and potential resolution— combined with treatment by clinicaltherapists, helps heal trauma for bothoffenders and victims and sets offenderson a better path.

Zehr of Eastern mennonite Universitysays the problem of stereotyping ethnicminorities is passed on through gener-ations. The New Zealand model, he says,was crafted to address law enforcement’streatment of minority maori communities— the indigenous group that makes upabout 15 percent of the nation’s popu-lation. Under this model, social workers“believe if you label people by gettingthem in the system, they are more likelyto be that,” Zehr says. “So this was anattempt to address that by both keeping[the maori population] out of the systemand using a conference that would allowculturally appropriate processes.”

Andrea Brenneke, director of Seattle’sRestorative Justice Initiative, helped orga-nize a restorative circle for a high-profile2011 case involving a Seattle police officer’skilling of a Native American woodcarver.The case exposed tensions between lawenforcement and the Indian community,and the meetings with the family andlaw enforcement officials established aprocess to resolve differences with thegrieving family and the community andto change police behavior. 39

“Restorative justice wasn’t designedto focus on racial inequities” in theUnited States, says David R. Karp, so-ciology professor at Skidmore College.But he adds, “The potential of restorativejustice to address those issues is huge.

“first of all, people from poor seg-regated black communities don’t wantto be involved in the criminal justicesystem. They see it as danger. Theywon’t report crimes, they won’t be wit-nesses,” he says. “If they felt like theywould be treated fairly if they weregiven the alternative,” it could work.

Baliga, from Impact Justice in Oak-land, agrees that minority communitiesdistrust the police and the courts. “what’sinteresting to me is that most crime isintraracial. when you attend to kids ofcolor as offenders, you also must beattending to kids of color who havebeen victimized,” she says. “They alsoare the same crime victims who thinknobody bothers [about them].”

No researchers have yet studiedrestorative justice’s ability to alter racialdisparities, largely because the methodisn’t widely practiced, many legal ex-perts say. Nevertheless, others say thatthe use of restorative justice cannotreverse the racial disparities noted incrime statistics.

minorities are disproportionately im-prisoned because of policing practicesthat discriminate against minorities, saysGriffith University’s wood, likening theirtreatment to apartheid. “Nobody thinksthe stop-and-frisk policy in New Yorkisn’t racist,” he says. “And much of theliterature says African-Americans and

Latinos aren’t using drugs more — theyare policed” at higher rates than whites.

while wood supports restorative jus-tice practices, he says racial disparitiescan only be reduced through structuralchanges in the U.S. justice system.

The manhattan Institute’s macDonaldsays racial disparities exist in the judicialsystem because minorities are the onescommitting the crimes. Overall, 28 per-cent of the fBI’s “known offenders” areAfrican-American, significantly above theblack population share, according tofBI data. 40

DeLisi of Iowa State Universityagrees. “There’s huge criminal justicedisparities because there are huge dis-parities in offending,” he says. “Lookat homicide and victimization. Blacksare well more represented than whites.So that will have an effect on prisonstatistics as well.”

BACKGROUNDAncient Circles

many indigenous groups and an-cient cultures — such as NativeAmericans, first Nation people of Canada,Native Hawaiians and African tribal coun-cils — used a holistic approach to justice.The victim, offender, community andfamily members sat in a circle and iden-tified the culprit, discussed the wrong-doing and determined how to repairthe harm or make amends.

In ancient times, minority groupswithin larger societies — such as inthe Russian or Ottoman empires —used the circle because they did nottrust the judicial system. many tribestoday continue to employ this practice,which experts consider the basis forrestorative justice. 41

Some restorative justice methods alsoincorporate Christian ideals, which preachforgiveness and stress giving “sinners” a

130 CQ Researcher

RESTORATIvE JUSTICE

second chance to reform their behavior.In many faiths, especially among Protes-tant groups such as the moravians, thatmeant congregations in the 17th and18th centuries used communal pressureto punish the wayward and to discouragerepeat offenses.

But outside the church, western na-tions relied on a far more punitive ap-proach to crime that focused on punishingthe offender, with incarceration in prisonsbecoming increasingly important in the19th and early 20th centuries.

In the United States in the tumul-tuous 1960s and ’70s, states expandeda “get-tough” approach to crime, par-ticularly youth crime, despite complaintsthat such a policy ignored more humaneand effective responses to crime. 42

In the 1970s a variety of approachesto restorative justice quietly emergedin Canada and the United States. Ajudge in Ontario in 1974 conductedthe first recorded victim-offender me-diation program. Rather than sentencetwo young men, ages 18 and 19, toprison or probation for vandalizing res-idents’ homes while intoxicated, thejudge agreed to a plan by the probationofficer, mark Yantzi, and a volunteerwith the mennonite Central Committee— a relief and peace agency foundedby the mennonite Church — to havethe men face their 22 victims. Theyoung men ultimately listened to thevictims, apologized and paid restitution.Two years later, Yantzi founded a non-profit organization to further promotesuch meetings. 43

Restorative justice practitioners creditAmerican psychologist Albert Eglashwith coining the term “restorative jus-tice” in a series of papers in the 1950sand again in 1977. 44 A year later, asmall halfway house for former Indianaprisoners burned down. Rather thanrebuild the house, state officials askedZehr, who was then the house’s director,to work with prisoners and their victimsto find reconciliation.

Zehr wrote a handbook in 1980 onhis model of restorative justice, encour-

aging its further use as an alternative totraditional judicial processes. He followeda decade later with Changing Lenses: ANew Focus for Crime and Justice, furtherdetailing restorative tenets.

meanwhile, a form of restorative jus-tice was used to address national crimes.In 1980, the U.S. Congress establisheda commission to investigate the legacyof Japanese internment camps that op-erated during world war II, which wasfollowed by an apology and reparationsduring the Reagan administration.

In 1981, a sheriff in Batavia, in upstateNew York, began a restorative justiceprogram called Genesee Justice, whichoffered community service sentencing,victim assistance and victim-offendermediation. 45

But as the crack cocaine epidemicwreaked havoc on urban communitiesand sent homicide rates soaring acrossthe United States in the late 1980s,the trend toward stricter penalties andminimum-sentencing standards gainedmomentum in the United States. Atthat time, restorative methods werebeing embraced more readily overseasand in Canada.

In 1989, New Zealand approved theChildren, Young Persons and Their fam-ilies Act in response to concerns amongmaori communities that increasing num-bers of their children were being removedfrom their families when accused of mis-behaving and placed in state residentialfacilities. The statute introduced the con-cept of family group conferencing to re-place youth courts in most cases. 46

Also in 1989, Australian sociologistJohn Braithwaite published Crime, Shameand Reintegration, proposing that of-fenders be dealt with through a processcalled “reintegrative shaming,” which of-fers respect for the offender and helpsthem reenter the community. The fol-lowing year, John macDonald, an adviserto the New South wales Police Service,started a police-run conferencing programin several jurisdictions in Australia. 47

Another method of restorative justicedrew on the use of circles by the first

Nations people of Canada. In 1992,Judge Barry Stuart presided over a casein mayo, a Yukon Territory village, in-volving a 26-year-old who had ap-proached a police officer with a bat.The youth had many criminal convictionsand a long history of alcohol abuse.

Rather than sentence him, the judgemodified the courtroom to create a circlewith 30 chairs for the judge, lawyers,police, first Nations officials and mem-bers, probation officer, the offender andothers. Community members pledgedto help the offender and his family dealwith substance abuse. The offenderagreed to a treatment program, and hisfamily agreed to help him. 48

Evangelical Push

Chuck Colson, a former top aideto President Richard m. Nixon,pleaded guilty in 1974 to obstructionof justice related to the break-in at theDemocratic National Committee’s head-quarters at the watergate complex inwashington, D.C. After serving sevenmonths in Alabama’s maxwell Prison,Colson started the Prison fellowshipin 1976 to create a ministry outreachprogram for prisoners. The programadvocates for a restorative justice ap-proach, promoting it as “an importantcontemporary expression of biblical jus-tice” and forgiveness.

Colson would later recruit the assistanceof Pat Nolan, a former California Assemblymember, who was indicted on April 27,1993, on six counts, including racketeering,conspiracy, extortion and money laun-dering. Nolan served 33 months in prison,then joined Colson to lead a branch ofthe Prison fellowship called the Justicefellowship, which focuses on criminaljustice reform. 49 (By 1998, Nolan wasadvocating restorative justice along witha lead researcher and Prison fellowshipcolleague, Daniel w. van Ness. 50)

As restorative justice overseas beganshowing promising results, and as criticism

Continued on p. 132


Chronology1974-1994Restorative justice is definedand modeled.

1974A judge in Ontario conducts thefirst victim-offender mediationprogram in Canada.

1976Chuck Colson, an ex-aide to Presi-dent Richard m. Nixon and formerfederal prisoner, starts Prison fellow-ship rehabilitation program.

1977American psychologist Albert Eglashcoins the term “restorative justice.”

1978Howard Zehr, considered the“grandfather” of the restorative justicemovement, administers a version ofrestorative justice for halfway-houseprisoners and their victims.

1981The sheriff in Batavia, N.Y., foundsa restorative justice program —among the first such experimentsin the United States.

1989New Zealand offers family groupconferencing as alternative to youthcourt. . . . Australian sociologistJohn Braithwaite introduces “reinte-grative shaming,” which restoresoffenders to the community.

1992A judge in Canada’s Yukon Territoryconducts a peace circle, an ancientform of restorative justice.

1994minnesota’s Department of Correc-tions hires the state’s first restorativejustice planner. . . . American BarAssociation endorses use of victim-offender mediation.

1995-2012 Themovement expands worldwide.

1995The National Organization for victimAssistance endorses restorative justiceconcepts. . . . A South African Truthand Reconciliation Commission, aform of restorative justice, beginsmeeting to address civil rights abusesduring the apartheid era.

1996U.S. Attorney General Janet Renoasks Justice Department to lookinto community-based approachesfor dealing with crime.

1997National Institute of Correctionsbegins training sessions on restora-tive justice.

1998Thames valley Police starts theUnited Kingdom’s first restorativejustice program.

2000A vermont statute requires restora-tive justice principles to shapehow the criminal justice systemhandles offenders and victims.

2001New Zealand experiments with acourt-referred restorative justiceprogram.

2002United Nations endorses basic prin-ciples of restorative justice. . . . Anassistant U.S. attorney writes two re-ports arguing that elements of NewZealand’s restorative justice processfor juveniles should be incorporatedin the U.S. juvenile justice system.

2004The first Truth and ReconciliationCommission is formed in the Unit-

ed States to deal with the 1979killings of civil-rights activists byKu Klux Klan members in Greens-boro, N.C.

2006Oakland, Calif., school district pilotsrestorative justice program to addressdiscipline problems.

2007European Commission issues guide-lines for mediating criminal cases.

•

2013-PresentGrowing U.S. prison populationspurs reform efforts.

2013Justice Department Inspector Gen-eral michael Horowitz writes of a“growing crisis in the federalprison system” due to overcrowd-ing and escalating costs. . . . At-torney General Eric Holder callsfor an end to zero tolerance poli-cies in schools, spurring schooldistricts to turn to restorative jus-tice programs.

2014Police killings of young African-American men lead civil-rights ad-vocates to call for a national truthand reconciliation commission.

2015Rep. Robert Scott, D-va., intro-duces the Youth Promise Actaimed at keeping youths out ofprison. . . . Congress discusseseliminating mandatory minimum-sentencing requirements for drugoffenders. . . . Sociology professorDavid Karp starts a national dis-cussion on using restorative justiceon college campuses to addresssexual assault cases, but the issueis controversial.

132 CQ Researcher

mounted over the U.S. criminal justicesystem’s failure to address increasingcrime, some American officials advocatedmore pilot restorative justice programs.A victims’ rights movement also calledattention to the needs and concerns ofvictims in the judicial process.

In 1994, the American Bar Associationendorsed the use of victim-offender me-diation. 51 The following year the NationalOrganization for victim Assistance en-dorsed “restorative community justice.” 52

while Colson was developing his min-istry fellowship, a not-for-profit commu-nity agency in minnesota had begun toadvocate for restorative justice as public

policy. Eventually, a position was createdwithin the state Department of Correctionsfocusing on restorative justice. 53

Kay Pranis, the department’s restorativejustice coordinator at the time, helpedstart “circle sentencing” in 1995, modeledon the Canadian approach. In 1996 shecreated the first community-based circlesentencing project to work with both ju-veniles and adults. Several rural and urbancommunities developed variations of vic-tim offender mediation, group confer-encing, reparative boards and peacemak-ing circles to work in conjunction withthe justice system, while prison staff in-corporated these methods when workingwith incarcerated individuals. 54

minnesota’s programs spurred com-munities in Colorado, florida, Oregonand Pennsylvania to follow suit.

Increasingly, however, judges, pros-ecutors, probation officers and juvenilejustice professionals nationwide becamefrustrated over contradictory governmentdirectives on young offenders. first, in1974, Congress had passed a law creatingthe Office of Juvenile Justice and Delin-quency Prevention to oversee how com-munities were charging and rehabilitatingyouths. Then in 1994, as urban crimewas spiking amid an epidemic of crackcocaine, Congress passed many punitivemeasures, including the landmark violentCrime Control and Law Enforcement

RESTORATIvE JUSTICE

when school administrators across the nation pull mis-behaving students out of the classroom, an increasingnumber of them are not suspending the studentsbut are having them meet with “justice committees” or in “peacecircles” to discuss with their peers, teachers and counselors theeffects of their behavior, face those they have harmed and talkabout how to change.

“Students are learning what conflict resolution really means,as well as critical social-emotional skills,” said lawyer ThenaRobinson-mock, project director of the Ending the Schoolhouseto Jailhouse Track campaign of the Advancement Project, awashington-based national civil-rights organization. “They’re de-veloping empathy for their peers and building trust and under-standing. Those are essential skills.”

But restorative justice should not be used for more seriousinfractions, say critics, who defend traditional discipline whencircumstances warrant.

Kevin Ahern, president of the Syracuse Teachers Associationin New York state, raised this concern after a 2014 newspaperarticle on the school board’s use of restorative justice. “Educatorsare not asking for harsh punishments for minor infractions”when they suspend or expel students, Ahern wrote in a letterto the editor, “but rather meaningful consequences for dangerous,violent and seriously disruptive behaviors that put students andstaff at risk and make quality instruction impossible.” 1

States have been requiring schools to find alternatives totraditional disciplinary methods in response to the Obama ad-ministration’s 2013 call to end what it termed the school-to-prison pipeline. The administration said school districts neededto reduce the skyrocketing use of suspensions and expulsionsand find ways to keep kids in school. Nationwide, about 3.5

million elementary and secondary school students were suspendedduring the 2011-12 school year, most for minor offenses. Another130,000 were expelled, and 260,000 were referred to law en-forcement agencies. 2

The rates for African-Americans were three times that ofwhites — a disparity the Justice and Education departmentssought to rectify by asking schools to use restorative justiceprograms and other alternatives. 3

The Oakland, Calif., school district pioneered the use ofrestorative justice in public schools after the U.S. Office of CivilRights in 2004 began probing the district’s discipline policiesfor racial discrimination. 4 The nonprofit Restorative Justice forOakland Youth (RJOY) piloted a program at one middle schoolduring the 2006-07 school year that helped reduce suspensionrates by 87 percent and eliminated violence, racial disparityand teacher attrition, according to fania Davis, co-founder andexecutive director of RJOY.

RJOY expanded the program to about 30 schools in Oaklandwith a budget of more than $2 million from state and localsources and 40 trained district employees, called restorativepractice facilitators, Davis says.

Damon Smith, a former Oakland student who had been sus-pended more than 15 times before the new practices took root,reported in 2013 that peace circle sessions had helped himchange his behavior. “I didn’t know how to express emotionswith my mouth. I knew how to hit people,” he said. “I feel Ican go to someone now” and work things out. 5

A September 2014 report showed that school suspensionsamong all races in Oakland declined by 22.6 percent betweenthe 2011-12 and 2013-14 school years, including a 40 percentdrop for African-American students accused of “disruption/willful

Restorative Justice Gets a ‘P’ for ‘Promising’“Students are learning what conflict resolution really means.”

Continued from p. 130


Act, which put 100,000 cops on thestreet, expanded prisons and tightenedsentencing guidelines. 55

In the same year, Justice Depart-ment’s Office of Juvenile Justice createdthe Balanced and Restorative JusticeProject, designed to help communitiesfind ways to achieve a balanced ap-proach to holding juveniles accountablewhile rehabilitating them. 56 A guidancedocument prepared by the office stated:“The restorative justice focus on crimeas harm, and justice as repairing theharm, offers a vision that elevates therole of crime victim, yet views victim,offender, and community as equal cus-tomers of juvenile justice services.” 57

In 1996, U.S. Attorney General JanetReno called for the Justice Departmentto look into community-based approach-es. 58 And the following year, the Na-tional Institute of Corrections undertookdemonstration projects and training ses-sions on restorative justice methods. 59

Several community programs fo-cused on restorative justice in casesinvolving young offenders or adult of-fenders accused of relatively minor,nonviolent crimes or with first-timeoffenders. The process “has shown itcan be an appropriate total or partialsubstitute to incarceration for felonyoffenders,” said Zehr, then associatedirector of the Parents and Children

Together (PACT) Institute of Justice, anonprofit family-intervention programbased in valparaiso, Ind., and markUmbreit, PACT’s executive director andcofounder. 60 Other researchers beganto look more closely at its effect onvictims as well as offenders and theirsubsequent behavior.

Restorative justice gained further le-gitimacy in 2002 when minnesota’sSupreme Court held that the DistrictCourt did not abuse its discretion byagreeing to a sentencing circle recom-mendation to grant an offender a stayof adjudication if she pleaded guiltyto wrongfully obtaining public assis-tance by lying about her income. 61

defiance.” Davis also has helped start programs in other schooldistricts throughout California. 6

Pittsburgh Public Schools in Pennsylvania began a restorativejustice program in 2014. 7 That same year, Chicago PublicSchools listed restorative justice as a discipline alternative in itsstudent code of conduct. 8

Early reports are encouraging. In Los Angeles, where the schoolboard mandated that by 2020 every school use restorative justiceas an alternative to conventional discipline, suspension days droppedfrom 74,765 to 8,351 between 2010 and 2015. 9 Two other studiesshowed promising results elsewhere. 10

Students of michael Seng, a professor at John marshall LawSchool in Chicago, run peace circles in several city schools toaddress misbehavior, ranging from truancy to bullying and fighting.

But restorative justice has its critics. Paul Sperry, a former mediafellow with the Hoover Institution, a conservative think tank connectedto Stanford University, called restorative justice “a touchy-feely”method. “Yes, other large urban school districts are reporting fewersuspensions since adopting the nonpunitive approach,” he said. “Butthat doesn’t necessarily mean fewer infractions.” 11

Chicago public school teachers said many schools lack adedicated “peace room” where students can calm down afterbeing removed from a class. 12

Seng says Chicago restorative justice facilitators have had togain the support of the city’s law enforcement agencies, whichwere skeptical of the method’s ability to stem crime.

Asked if the practice is working, Seng says, “Anecdotally,we are real optimistic. But to put it down on paper? I’m notsure we can make the case yet.”

— Christina L. Lyons

1 Kevin Ahern, “Syracuse Teachers’ Union: ‘Restorative justice’ is fine, but whatabout immediate safety?” Letter to the Editor, The Post-Standard, April 8, 2014,http://tinyurl.com/jmt3rhw.2 “Civil Rights Data Collection, Data Snapshot: School Discipline,” U.S. Departmentof Education Office for Civil Rights, march 21, 2014, pp. 2 and 6, http://tinyurl.com/kls2ajo. for more information, see Ann farris Rosen, “School Discipline,”CQ Researcher, may 9, 2014, pp. 409-432.3 “Civil Rights Data Collection,” ibid.; “Resource Guide for Superintendents,”U.S. Department of Education, Office of Secondary Education, July 2015,http://tinyurl.com/ht8tyfz; and “Dear Colleague Letter on the NondiscriminatoryAdministration of School Discipline,” Civil Rights Division, U.S. Departmentof Justice and Office for Civil Rights, U.S. Department of Education, Jan. 8,2014, http://tinyurl.com/j4pvklt.4 Jessica Chasmar, “Oakland schools ban suspensions for defiant behaviorfollowing civil rights probe,” The Washington Times, may 15, 2015, http://tinyurl.com/jp2rod7; “Agreement to resolve Oakland Unified School District, OCRCase Number 09125001,” Office for Civil Rights, U.S. Department of Education,Sept. 27, 2012, http://tinyurl.com/hsxxo4c.5 Patricia Leigh Brown, “Opening Up, Students Transform a vicious Circle,”The New York Times, April 3, 2013, http://tinyurl.com/zmdpwx7.6 “Restorative Justice in Oakland Schools: Implementation and Impacts 2014,”Oakland Unified School District, September 2014, http://tinyurl.com/jqtbpta.7 Joshua wachtel, “Pittsburgh in groundbreaking project to make schools safer,”Restorative works, Oct. 15, 2014, http://tinyurl.com/zwdguog.8 “CPS Proposes Revisions to Student Code of Conduct to further ReduceSuspensions and Keep Students Engaged in the Classroom,” press release,Chicago Public Schools, June 26, 2014, http://tinyurl.com/j6jy323.9 Christine Armario, “In LA, policy shift yields decline in school suspensions,”The Associated Press, Jan. 10, 2015, http://tinyurl.com/jeweozs.10 “Improving School Climate: Evidence from Schools Implementing RestorativePractices,” International Institute for Restorative Practices, 2014, http://tinyurl.com/j7w7lhe; Anne Gregory et al., “The Promise of Restorative Practices toTransform Teacher-Student Relationships and Achieve Equity in School Dis-cipline,” Journal of Educational and Psychological Consultation, Nov. 4, 2014,http://tinyurl.com/h84b9lf.11 Paul Sperry, “How liberal discipline policies are making schools less safe,”New York Post, march 14, 2015, http://tinyurl.com/pv9m8up.12 Juan Perez Jr., “Teachers complain about revised CPS discipline policy,”Chicago Tribune, feb. 25, 2015, http://tinyurl.com/jnlqr7q.

134 CQ Researcher

International Momentum

The Thames valley Police was thefirst organization in the United King-dom to use restorative justice to dealwith young offenders. 62 In the late1990s the former chief constable, CharlesPollard, helped facilitate the first con-ference at the police station in Aylesburyto deal with two 16-year-olds who hadtaken a woman’s car on a joyride.

“The offenders were hugely remorse-ful. They were appalled by what they’ddone,” Pollard said. from there, restora-

tive justice programs spread to the restof the country. 63

In 1995, South Africa devised a Truthand Reconciliation Commission to ad-dress human rights abuses that occurredduring apartheid. 64

Restorative justice principles — theunderstanding that justice should focuson repairing the harm done in a crimeand that the people most affected bythe crime should be able to participatein its resolution — began to appear instatutes around the world. In 2001, NewZealand piloted a court-referred restora-tive justice program that extended to

adult cases. 65 In subsequent years severalstatutes were amended to require thatrestorative justice be considered at sen-tencing and parole release. New Zealandschools also offer restorative justice. 66

The United Nations did not definerestorative justice when it encouragedits use by member states in 2002, butit endorsed many of the same basicprinciples. 67 The following year theU.N. Office on Drugs and Crime pub-lished a handbook to help memberstates craft their own programs. 68

In 2007 the European Commissiontook a step toward a restorative concept

RESTORATIvE JUSTICE

fania Davis has suffered the effects of racial violence since shewas 15, when two close friends were killed in the white su-premacist bombing of a Birmingham, Ala., Baptist church inSeptember 1963. The bombing marked a turning point in the civilrights movement and helped lead to the Civil Rights Act of 1964.

Six years later, Davis says, police broke into her home and shother husband because of their support for the Black Panthers — arevolutionary African-American nationalist group. Since then, she says,a pattern of racial violence and discrimination has continued, somethingshe believes needs to be addressed through a form of restorativejustice known as a truth and reconciliation commission. Such a panelcould be similar to one formed in 1995 in South Africa to deal withhuman rights abuses that had occurred during apartheid. 1

“It’s an idea whose time has come,” says Davis, executivedirector of Restorative Justice for Oakland Youth, which providestraining and support for practitioners nationwide. She also is acivil-rights lawyer and the sister of Angela Davis, the 1960s radicalwho has waged numerous battles on behalf of the oppressed.

A series of high-profile police killings of young African-American men in 2014 and ’15 has sparked outrage among mi-nority communities nationwide. 2 Some type of truth commission,Davis says, might enable open discussions within communitiesaffected by those killings, such as ferguson, mo., and Baltimore,where racial violence has led to riots.

Davis is joining forces with restorative justice activists across thecountry to discuss how to undertake such an initiative. Theseactivists include margaret Burnham, professor at the NortheasternUniversity School of Law in Boston, Bryan Stevenson, founder andexecutive director of the Equal Justice Initiative, a nonprofit inmontgomery, Ala., that provides legal services to indigent defendersand prisoners; and Howard Zehr, who helped found the restorativejustice movement and wants to see a commission formed.

Davis and her allies have not worked out how a commission

would operate, including such key details as its size, scope ofoperation and powers. But Davis says she foresees a commissionthat is national in scope and would use “healing circles” in fergusonand other places. The circles — a restorative justice method oftenused in schools and communities to address specific crimes —would bring together law enforcement, victims, local leaders andcommunity members to talk about the incidents, their causes andeffects and ways to make amends and build new relationships.

“Not only will people share stories of either causing harm orbeing harmed at local levels in these circles, but they also willcome up with local ideas for action,” such as perhaps a requirementthat police live in the communities they serve, Davis says.

Davis concedes she hasn’t seen the “peace circle” used toredress historical harms, but says dozens of truth and reconciliationcommissions deployed worldwide are models. Such commissionstypically do not conduct trials or cross-examine witnesses; instead,they provide an official history of incidents and offer recom-mendations of how to make reparations. 3

The South Africa Truth and Reconciliation Commission invitedvictims of human rights violations to testify about their experiencesand offered amnesty from prosecution to offenders who confessedpublicly. The commission, formed by the government, traveledaround the country to hear testimony.

“Stories of abuse were publicly shared for the first time,” Davissays of the commission. “The beauty of that process in SouthAfrica was that everyone tuned in. . . . That’s what I’d like tosee in this country.”

In 2004 a private organization formed the Greensboro Truthand Reconciliation Commission in North Carolina, the first suchcommission in the United States, many years after whitesupremacists had killed five anti-Klan demonstrators in Greensboroon Nov. 3, 1979. The commission was charged with determiningthe “context, causes, sequence and consequences” of the incident

Truth and Reconciliation Panel Sought“It’s an idea whose time has come,” says its leading proponent.


when it issued new guidelines for im-plementing mediation in crime cases.But in 2012, the commission adopteda directive giving all victims the rightto review a decision not to prosecuteand providing for safeguards whenchoosing restorative justice. 69 Belgiumwas already modeling a restorative justicemethod entailing family conferencingfor young offenders. 70

meanwhile, in the United States, theNew Zealand program had caught theeye of justice groups and law enforcementofficials. many state statutes began toendorse — but not mandate — restorative

methods, primarily for young offendersor those arrested or convicted of relativeminor, nonviolent offenses. 71 One ex-ception was the vermont General As-sembly: In 2000 it had passed a statuterequiring that restorative justice tenetsbe used to shape criminal justice. 72

In 2002, an assistant U.S. attorneyhad written two reports stating thatthe New Zealand practice showedpromise for use in the U.S. criminaljustice system. 73

Law enforcement agencies and socialworkers tried restorative methods withsome violent criminal cases. In massa-

chusetts, the victim-offender dialoguemethod was used in 2006 when awoman met with two men accused ofkilling her son Joel. The mother reported,“Sitting in that dialogue helped me feelthat Joel’s life . . . mattered,” and shesaid she would hold the young mento a commitment to live different lives— which they reportedly did after theywere released from prison in 2012. 74

Promoters of restorative justice height-ened their efforts after U.S. InspectorGeneral michael E. Horowitz in 2013noted a “growing crisis in the federalprison system” due to overcrowding

and recommended ways to repair harm done to the widercommunity, such as an acknowledgment of the tragedy by thecity and public apology by the offenders. 4

Davis sees a similar role for a national truth commission. Besideshearing grievances and promoting reconciliation, the panel mightestablish a national slavery museum and a truth and reconciliationcenter to keep the work ongoing, she says. “It takes more than afew years to undo more than 500 years of oppression,” she says.

meanwhile, Burnham and her students are working to uncoverthe details behind hundreds of killings during Jim Crow — an80-year period after Reconstruction when state laws enforcedracial segregation and during which nearly 4,000 African-Americans were lynched. 5

melissa Nobles, dean of mIT’s School of Humanities, Arts,and Social Sciences, and her students are working with North-eastern to compile data of racially motivated homicides in formerConfederate states between 1930 and 1954. As they find answers,they share the details with surviving family members to helpheal ongoing pain. “The ramifications of these murders havebeen far reaching,” Noble said. 6

Zehr says he supports the effort to create a commission inhopes it will lead to racial healing. Offenders in the criminaljustice system, he says, often feel labeled as incorrigibles, par-ticularly those in minority communities — an issue addressedin michelle Alexander’s 2012 book, The New Jim Crow: MassIncarceration in the Age of Colorblindness.

“Rather than rely on race, we use our criminal justice systemto label people of color ‘criminals’ and then engage in all the[exclusionary] practices we supposedly left behind,” Zehr says.“Today it is perfectly legal to discriminate against criminals innearly all the ways that it was once legal to discriminate againstAfrican-Americans.”

— Christina L. Lyons

1 fania Davis, “This Country Needs a Truth and Reconciliation Process onviolence Against African Americans — Right Now,” YES! Magazine, Dec. 5,2014, http://tinyurl.com/oj729mj.2 Jason Hanna, Josh Levs and Ben Brumfield, “Police: Teen raised gun beforeofficer killed him near ferguson,” CNN, Dec. 26, 2014, http://tinyurl.com/o98nlf2;“Timeline: freddie Gray’s arrest, death and the aftermath,” The BaltimoreSun, April 12, 2015, http://tinyurl.com/pps8ees; and Kim Bellware, “ChicagoReleases ‘Chilling’ video of Cop Shooting Teen 16 Times,” The HuffingtonPost, Nov. 25, 2015, http://tinyurl.com/z4nxdvx. for background, see PeterKatel, “Racial Conflict,” CQ Researcher, Jan. 8, 2016, pp. 25-48.3 for background see Jina moore, “Truth Commissions,” CQ Researcher, Jan. 1,2010, pp. 1-24.4 “Greensboro Truth and Reconciliation Report: Executive Summary,” may 25,2006, http://tinyurl.com/gupd54o.5 “Lynching in America: Confronting the Legacy of Racial Terror, ReportSummary,” Equal Justice Initiative, 2015, http://tinyurl.com/pu8gqwd.6 “3 Questions: melissa Nobles on advancing racial and restorative justice: Headof political science at mIT says understanding the past is a source for socialinnovation in our own time,” MIT News, April 6, 2015, http://tinyurl.com/hjatf3o.

Margaret Burnham, a law professor at NortheasternUniversity in Boston, is working with some of herstudents to investigate hundreds of racially motivatedkillings that occurred during the Jim Crow era in an

attempt to bring closure for victims’ families. The effort ispart of the healing techniques used in restorative justice.

Get

ty Im

ages

/The Boston Globe

/Suz

anne

Kre

iter

136 CQ Researcher

RESTORATIvE JUSTICE

and told the U.S. attorney general thatthe rising costs of the judicial systemwere eating up the Justice Departmentbudget. 75

The Justice Department encouragedcommunities and states to explore al-ternatives — naming restorative justiceas a potential solution, particularly foryouthful offenders. many communitiesand schools responded to the call.

“I’ve never seen things turn aroundso fast,” Pranis says. “Suddenly you

had the federal government . . . speak-ing out” for restorative justice. “But bythat time, communities were alreadyin front of that.”

CURRENTSITUATIONIn Communities

School systems across the countryare expanding the use of restorativejustice practices as local officials try to

meet state and federal demands thatschools end zero-tolerance policies.(See sidebar, p. 132.)

many schools overseas are usingthe approach as well. And more com-munities worldwide are eyeing the prac-tice and building new programs. Severallegal experts, victims’ rights groups andsocial workers are debating the feasibilityof using restorative justice approachesin domestic and sexual assault casesin the United States. Restorative justice

programs in Australia recently have beenexpanded to address sexual assault anddomestic violence cases — a move thathas generated some criticism. 76

meanwhile, as the Obama admin-istration releases thousands of so-called“low level” drug offenders in an attemptin part to relieve overcrowding, correc-tions officers and social workers aredebating whether restorative justicecould be a feasible alternative to prison.

Seattle has established a pre-bookingdiversion pilot program, called the LawEnforcement Assisted Diversion (LEAD),for those who have committed low-level drug and prostitution crimes. Ini-tially funded by the ford foundation,the project gained state financial support

after producing cost savings from re-duced incarcerations. People who par-ticipated in the program were 58 per-cent less likely to reoffend comparedwith offenders processed through thejustice system, according to an evalu-ation of the project. 77

Steve Cook, president of the NationalAssociation of Assistant U.S. Attorneys,disagrees that the thousands of drugtraffickers released from federal prisonslast year were low-level offenders, orthat restorative justice might offer analternative to incarceration.

“Because we are dealing with high-level offenders, not low level, we thinkthe way the criminal justice system isdealing with it is correct — minimumpenalties for significant drug traffickers.”

He continues: “we all would likean alternative that works. But we areinterested not only in incapacitating aperson but in sending a message.”

Cook says the most appropriate usefor a restorative justice program would beat the state level with very low-level of-fenders, or before releasing high-level of-fenders from prison into the community.

meanwhile, Zehr is working withDavis of Restorative Justice for OaklandYouth and others to use restorativejustice to solve endemic racial violence.They want to form a truth and rec-onciliation commission to address theviolence against minorities in the UnitedStates. (See sidebar, p. 134.)

On Campuses

Skidmore College’s Karp is urging anational discussion among practition-ers and universities about using restorativejustice practices to address campus sexualassaults, a problem that is receiving grow-ing national attention. A committee of theAmerican Bar Association also is lookinginto the idea. 78

The Justice Department reported thatsexual assault on college and universitycampuses increased from 2,200 in 2001

Continued on p. 138

Cathy Stronghearted Woman listens during a drum circle at the Walk forReconciliation last May in Toronto. The circle, a restorative justice practice

first used in ancient indigenous cultures, is designed to promote reconciliation between Aboriginal peoples and other Canadians.

Get

ty Im

ages

/Toronto Star/

Mar

ta Iw

anek

no


At Issue:Could restorative justice reduce U.S. incarceration rates?yes

yes

JOAN PENNELLDIRECTOR, CENTER FOR FAMILY ANDCOMMUNITY ENGAGEMENT, NORTH CAROLINA STATE UNIVERSITY

WRITTEN FOR CQ RESEARCHER, FEBRUARY 2016

e vidence of restorative justice’s impact on incarcerationrates is inconclusive, but the experience with juvenilesis instructive. Youth incarceration has dropped over thepast decade in the United States. Can we attribute this decreasesolely to restorative justice practices? Certainly not. Approachessuch as family group conferencing and peace circles are far tooinfrequently and inconsistently applied across the country toassess their impact.

Nevertheless, the usefulness of family group conferencing isevident in New Zealand, where it was legislated in 1989 forchild welfare and juvenile justice. Since the adoption of familygroup conferencing, the rate of young people held in custodialfacilities has fallen by at least two-thirds and is at a level farlower than in the United States. The question is not whetherrestorative justice can reduce youth incarceration but ratherhow we can leverage this approach to keep young peopleconnected to their families, schools and communities.

Conferencing cannot stand alone. Its ability to reduce reoffend-ing must be seen within the larger context of reforms that in-clude diversionary policing, shorter sentences and better supportfor families.

moreover, the New Zealand experience shows that applyingthe lowest possible level of intervention also prevents youthsfrom progressing further in the legal system. This comprehensiveapproach is in line with the recommendations of the NationalJuvenile Justice and Delinquency Prevention Coalition in the UnitedStates, as well as with initiatives that encourage investment incommunity-based interventions over costly detention centers.

Restorative justice practice is best construed as a meta-strategyrather than as an intervention that stands on its own. Accordingly,even a small positive effect is notable. To fully ascertain its im-pact on incarceration levels, we need to take into account familyand community engagement at different life stages by the varioussystems. for instance, family group conferencing in child welfarecases can avert problems involving safety and wellbeing thatcould lead to later offending by a juvenile.

In trying to protect children, we have learned that familygroup conferencing promotes the reunification of families, es-pecially for African-American and Hispanic children. Theseearly efforts at stabilizing children’s lives can potentially reducetheir contacts with the legal system, increase the children’ssense of fairness in how the system makes plans regardingtheir lives and educate them about how to engage responsiblyin their communities.no

WILLIAM WOODSENIOR LECTURER, SCHOOL OF CRIMINOLO-GY AND CRIMINAL JUSTICE, GRIFFITHUNIVERSITY, QUEENSLAND, AUSTRALIA

WRITTEN FOR CQ RESEARCHER, FEBRUARY 2016

w hile restorative justice has many merits, reducingincarceration rates is not one of them. Restorativejustice approaches generally include meetings be-tween victims, offenders and other parties, where victims areallowed to explain the harms caused to them and offenders areafforded the possibility of making amends for these harms. Research has found that restorative justice probably leads to asmall or moderate reductions in reoffending rates and is generallybetter for victims than conventional justice practices.

Reductions in reoffending would seem to be a good startingpoint for lowering prison rates, but this is misleading. In theUnited States and most other English-speaking countries,restorative justice is used largely for youth and/or lesser of-fenses. On the whole, it is not widely used for more seriousoffenses, or for repeat offenders likely to commit imprisonableoffenses. Unless restorative justice is used more systematicallyfor serious offenders, it will have little ability to reduce prisonrates through reduced reoffending.

Another possibility would be to use restorative justice as analternative to incarceration for first-time or low-risk offenders.Some of the earliest restorative programs were developed inthe 1970s as alternatives to incarceration, and many early ad-vocates focused on ways to lower prison populations. Sincethen, however, restorative justice has been largely institutionalizedas part of criminal justice sanctions, not as an alternative tothem, and there are few examples today of restorative justicebeing used as an alternative to incarceration.

finally, incarceration rates in the United States and elsewheredid not grow due to increases in crime. On the contrary, theUnited States, Australia, New Zealand and the United Kingdomsaw decreases in serious crime over the last two decades,even while prison rates soared.

Prisons did not fill up because people committed morecrime. They filled up because of changes in policing practices,sentencing laws and correctional policies. These changes arefar beyond the purview of restorative justice or criminal justiceinterventions in general.

If we seek ways to substantially reduce incarceration, wemust confront the historical drivers of prison growth. Restorativejustice may have a role to play in this, but to date that role isnot yet well-defined. mass incarceration is a political problem— a consequence of almost four decades of “tough on crime”practices. without redress of these policies, no type of alternativesanction will make much difference.

138 CQ Researcher

to 3,300 in 2011, and the Departmentof Education has been investigatingdozens of colleges and universities fortheir handling of the cases. The issuehas victims’ rights groups and civil lib-ertarians debating the best process forhandling sexual assault cases. 79

“There is a knee-jerk resistance” torestorative justice, Karp says, becausemany people oppose bringing the vic-tim and perpetrator together. But, hesays, often the victim doesn’t want theother student arrested and just wantsthe issue resolved. “In the current cli-mate, it may not be possible. But thereis an increasing desire for it.”

meg mott, a professor of political the-ory at marlboro College in vermont, saysusing restorative justice in cases of sexualassault is “a no-brainer.” If the victim isreluctant to participate or thinks the per-petrator is a danger to society, she adds,“they can go downtown and go to courtand get the full force of the law.”

But she expects resistance to the ap-proach to continue because of a growing“war on rape.” This war, she says, is“creating that same sort of fear, enormousfear,” that we saw with the war ondrugs. The response in such situations,mott says, “has always been to createtougher laws, put more people away.”

At the National Level

Restorative justice is drawing somelimited congressional attention.Rep. Robert Scott, D-va., has proposed

the Youth Promise Act, which aims toencourage communities to deal with ju-venile delinquency and criminal streetgang activity by seeking alternatives, in-cluding restorative justice, to jail. The billis pending before the House Committeeon Education and the workforce. 80

Colson’s Justice fellowship is rallyingbehind the Smarter Sentencing Act, pro-posed by Rep. Raúl Labrador of Idahoand Sen. mike Lee of Utah, both Re-publicans. The Justice fellowship said

the bill — which has not moved forwardin either the House or Senate — wouldadvance the principles of restorativepunishment because it “promotes thevalue of proportional punishment.”

Lee has not used the term “restorativejustice.” He has only discussed the needfor “forgiveness” and imposing appro-priate sentences — two Christian prin-ciples associated with restorative justice.

“forgiving is not the same thing asexcusing,” Lee said. “And it’s not incom-patible with punishment. forgivenessrequires assigning blame and, when nec-essary, imposing just punishments.” 81

few other national politicians are talk-ing about restorative justice. One pres-idential candidate, Republican Jeb Bush,mentioned it last year when he told theNational Urban League that “real justicein America has got to include restorativejustice. I opened the first faith-basedprison in the United States,” he said, re-ferring to his 2003 decision to start areligious-based program in a medium-security prison in Bradford County, fla.,aimed at rehabilitating prisoners. 82

Karp says restorative justice has yetto

CQR Restorative Justice - antoniocasella.eu · 2016. 12. 4. · .cq resa h om Feb.w 5, 2016 123...

Documents

Transcript of CQR Restorative Justice - antoniocasella.eu · 2016. 12. 4. · .cq resa h om Feb.w 5, 2016 123...