Questions about Restorative Justice

Recently, I was talking with a colleague about restorative justice practices. She is a strong proponent of “RJ,” as it is known. I am supportive of the concepts, and in particular of bringing some of the practices into our Avila University community’s student disciplinary process (see my two most recent posts, below). But I have lingering doubts about its applicability in the adult criminal justice system. Some of the practices advocated by RJ proponents have, in fact, been around at least since 1977, when I first began practicing law as a prosecuting attorney (in cases where criminal defendants were placed on probation, they were then, in appropriate cases, being ordered to pay restitution to crime victims, and sometimes to perform “community service”). Since then, “victim impact statements” have become routine at sentencing hearings. In my view, none of these three practices have been terribly successful.

As to restitution: bottom line is, it rarely gets paid. Most criminal defendants just are not very financially well-off, financially responsible, or stable in employment. And, also not surprisingly, they tend to evade the court’s order. The court and its personnel, in turn, spend a lot of time and energy (and this equals money) trying to compel the defendant to comply, and threatening him. Meanwhile, the victims, whose hopes have been raised by the fact that restitution has been ordered, become disappointed, if not increasingly embittered.

As to community service: who really wants these guys suddenly thrust upon them in the workplace, needing to be told what to do, how to do it, and needing to be supervised? Answer: really, nobody wants this. It’s a nice idea in theory, but in order to really make it work, somebody would have to put in a lot of time (and this equals money) to create and implement organized programs to place people into appropriate “service” slots, and supervise them.

Finally, as to “victim impact statements”: since I have sat through hundreds, if not thousands, of sentencings, I have listened to many, many courtroom hearings in which crime victims, and their families and friends, have tearfully, wrenchingly, and sometimes furiously made lengthy statements (often diatribes) to the court and to the defendant. It can be quite excruciating. And I am not convinced that it is, in many cases, of benefit either to the victim(s) (and company) or to the defendant. The problem is, as I see it, in the nature of the criminal justice system, which is that it is an adversary process. Each side is compelled to exaggerate its stance, in order to maximize its effectiveness and its chances of prevailing in what amounts to a battle, in each criminal case. The victims are treated by the prosecutor’s office (especially by those who serve as “victim advocates”) as if they were not only perfectly innocent (which, frankly, is more rare than you might think), but also irreparably damaged, if not totally ruined (short of murder, this is rare, too). Correspondingly, the defendants are made into monsters (again: rare). The defense side, for its part, portrays the defendant as a misguided soul, probably himself the victim of abuse and poverty, who made a bad mistake, and is sorry (maybe, maybe not!). But, at the same time, the defense dare not suggest that the victims might have in any way had contributed to their own unfortunate situation, even if they did (as is more often the case, than you might think). All in all, we often end up with a spectacle, in which the victim (and family and friends) are urged to really let it rip, and they rise to the occasion. And, because it can be so overblown, with the parties made into caricatures of Victims and Perpetrators, it can become trivialized and ineffective. In other words, no reconciliation or genuine healing can occur, because no real communication takes place.

Contrast this with some of the other practices, which take place much less often in adult criminal cases. In juvenile court, where the process is not so adversarial in nature, practices that are more inclusive (e.g., “circles,” and pre-adjudication conferences in which all parties participate) appear very promising. Meetings between victims and criminal defendants, when all parties are motivated and properly prepared, can be very helpful (these take place after the defendant has been convicted and sentenced). And I believe that we can bring these principles and practices to college and university disciplinary processes with good results, as well (in part because our systems are not committed to an adversarial model).