Turn on any popular legal drama on television, and you’ll see that American culture defines successful prosecutors as those who bluster away in the courtroom securing guilty pleas, stern verdicts and long sentences. This measure of “justice” has often poorly served both defendants and victims.
Meanwhile, our incarcerated population has ballooned.
The story of prosecution in America is, in large part, a story of poor incentives and meager options. Luckily, some prosecutors are bringing a new tool within their wheelhouse: restorative justice. Others should follow their lead.
Restorative justice programs bring together victims and the individuals who harmed them, along with family and other people affected, to discuss what occurred and the steps needed to repair the damage. The encounters, moderated by a trained facilitator, are confidential.
It can be a single meeting, or a series of meetings, and all players carefully prepare beforehand to ensure that the result of such often-painful sessions can be beneficial to everyone involved.
Restorative justice programs can take place in a variety of formats and at various points in the justice process. When used by prosecutors, they often serve as an alternative to the traditional criminal justice process that involves a trial or, depending on the severity of the offense, imprisonment.
Restorative Justice in Washington, D.C.
For example, Washington, D.C.’s restorative justice program for youth takes place before trial.
To be eligible for that program, the young defendant must admit guilt after being informed of the potential consequences of doing so by their counsel. The victim must also grant permission. To protect the defendant, participants agree that any incriminating information that surfaces during these discussions cannot be used against them in future charging.
If everything is in order, prosecutors defer prosecution to allow the defendant and the victim to come together to discuss the harm and develop a plan. If the defendant participates in the conference and successfully completes a plan for remediation of the offense, either through counseling or action, the charges are dropped permanently.
Restorative justice doesn’t replace the role of prosecutors. In fact, it is meant to underline their function in our justice system: securing justice for victims and promoting public safety. And it has the additional benefit of promoting healing, holding individuals accountable, and allowing them to repair the harm caused by the perpetrator.
And in many cases, it produces better outcomes than traditional prosecutorial methods.
Research suggests that defendants are more likely to comply with the agreed-upon plans than with court orders issued through the traditional justice system. And studies evaluating restorative justice programs generally find them to be associated with a reduction in recidivism.
On top of this, a recent study evaluating a range of restorative justice programs found that youth who participated in the programs refrained from committing a new crime for a longer period than comparable youth who were referred to juvenile court. In short, restorative justice programs put fewer people behind bars, while simultaneously promoting public safety.
These results demonstrate the power of empathy, proximity and joint accountability.
Restorative justice programs work in large measure because they return agency to victims — a phenomenon laid out in Danielle Sered’s book “Until We Reckon.” Instead of forcing victims to choose between participating in the traditional court process or receiving no justice at all, those who opt for restorative justice can receive answers to their questions, express their pain, and help decide the appropriate method of accountability. Meanwhile, defendants are not only forced to confront the harm their actions caused, they get to be a part of the solution.
For all parties involved, these programs create a space for healing.
Healing rarely occurs in the traditional court process. It’s no surprise, therefore, that research suggests both victims and defendants involved in restorative justice programs generally report being happier with case outcomes and believe them to be fairer than the outcomes of cases that are processed traditionally.
Restorative justice programs also shift the locus of power and accountability back to communities. When facilitated by people and organizations based in the locations where the harm occurred, these programs equip local residents with the resources and skillsets needed to facilitate their own restoration.
This infrastructure can then be used to address harm in other instances without involving the legal system.
Changing Prosecutorial Culture
And when restorative justice programs are facilitated by staff housed alongside the prosecutor’s office, a more positive prosecutorial culture may evolve. In D.C., for example, prosecutors may be able to join a restorative justice conference for a case they are not in charge of prosecuting. For most, this is a rare opportunity to hear the full stories of victims, defendants and other affected parties.
Following participation, many prosecutors begin referring more cases to the program, including serious ones. Others incorporate restorative justice principles into their own practices by asking victims questions such as, “What does justice look like to you?” Put simply, restorative justice programs help prosecutors reassess their assumptions surrounding victims, defendants and what accountability should look like.
Prosecutors are charged with the duty “to seek justice, not merely to convict.” For the last few decades, the criminal justice system has placed a greater focus on the latter at the expense of the former.
This can change. And it should.
Using the tools provided by restorative justice programs, prosecutors can diversify the mechanisms through which they seek accountability, bring about healing, and keep the public safe.
Emily Mooney (@emilymmooney) is a Criminal Justice and Civil Liberties Fellow at the R Street Institute. Arthur Rizer (@arthurrizer) is a former federal prosecutor and the Director of Criminal Justice and Civil Liberties at the Institute.