Can Restorative Justice Go Mainstream?

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courtroom embrace

Brandt Jean embraces Amber Guyger, the off-duty Dallas cop convicted of murdering his brother, after she was sentenced. Still via YouTube.

When Botham Jean’s convicted killer was sentenced to 10 years in prison last month, the victim’s brother, Brandt Jean, offered his forgiveness in an emotional moment in the courtroom.

In one of last year’s most widely reported cases of police shootings of unarmed civilians, a white off-duty Dallas police officer named Amber Guyger mistakenly entered the apartment of Jean, a 26-year-old African-American accountant, and fatally shot him in the belief that he was an intruder.

Botham Jean

Botham Jean. Courtesy Wikipedia

After the judge delivered her sentence, Jean’s brother hugged a tearful Guyger (she was also embraced by the judge) in what was a remarkable—and to many people, startling—example of establishing closure.

Some argue that moments like the one between Jean’s brother and the former police officer, in which a victim (or victim’s relative) and a perpetrator converse directly, are also an example of restorative justice—a concept advocates and some criminologists argue is a key way to remedy the harm done by criminal actions, as well as to heal communities and even reduce recidivism.

Is what happened in that Texas courtroom a sign that the concept is gaining traction in the justice system?

Restorative practices are often used as “a supplement or a complement, but in the rare situation is it a substitute,” Stanford University Law Professor Robert Weisberg said in an interview with The Crime Report.

Weisberg called the programs he’s seen “on the whole, extremely successful.”

Restorative justice practices can mean different things to different people. But generally, they involve an offender and a victim moving out of an adversarial courtroom and into an organized meeting space that can provide some measure of “healing.”

Under the supervision of a trained community member, participants discuss how a crime was harmful with those directly involved. Some organizations use restorative justice practices to mediate between the victim and perpetrator of domestic violence crimes.

Others use those same principles in tandem with, or to delay, sentencing.

“Restorative practice and justice is an extremely effective intervention, in large part because it nests the problem where we have the biggest possibility of change—in the family, in the community,” New York University law professor Linda Mills told The Crime Report

Mills helped develop Circles of Peace, a domestic violence treatment and prevention program that uses restorative justice practices as a means of healing.

Fifteen years after the program started, Mills and her team published promising research which suggests a significant reduction in subsequent arrests for those participating in the Circles program.

Mills’ research differs from most other restorative programs in that the offender is required to participate. Usually, participation is voluntary.

Mills described the research as a comparison between typical batterers’ programs and a combined restorative-justice informed treatment. Mills said those randomly assigned to the restorative program saw a 50 percent decline in arrests.

Intervention or Diversion?

“Our work has focused on using the criminal justice process to develop an intervention that occurs usually at sentencing, though occasionally it’s a diversion program,” Mills said.

Diversion programs generally try to rehabilitate an individual, with the aim of delaying or avoiding conviction. Conversely, programs like Circles of Peace work in tandem with a sentence.

Mills has seen success in domestic violence cases. Weisberg, who also co-directs the Stanford Criminal Justice Center, pointed to diversion courts and, in particular, courts for veterans, as especially promising.

A diversion program essentially takes a case out of the formal justice system. Often, the program is a form of sentence in which an offender joins a rehabilitation program instead of being sent to prison.

In some cases, the offender avoids conviction or hides a criminal record. Diversion programs have grown in recent decades, in part because research has indicated these courts reduce recidivism, according to the Vera Institute of Justice.

“[Diversion] programs are not necessarily adversarial because, in the best of them, you’ll have a team of probation workers, prosecutors, defense workers, social workers, therapists, all getting together trying to solve the problem to help [an offender] lead a constructive life,” Weisberg said.

Forgiveness

Forgiveness was the byword in the Botham Jean case. But experts say forgiveness in restorative justice is often an unintended consequence.

“We do not pursue the idea of forgiveness as an outcome,” National Association of Community and Restorative Justice Executive Director Michael Gilbert said in an interview. “We hope it happens, we like to see it when it does happen.”

Instead, restorative practices seek to create accountability. They also offer support and an attempt to repair damage, Gilbert said.

Some programs using restorative justice create accountability by including a member of the community, often specially trained for the role.

Mills sees the community member as integral to the restorative process in domestic violence cases.

“One on one mediation, face to face conversations without a community representative in the domestic violence context starts to feel like couples counseling,” she said. “A community member in the restorative justice circle provides the accountability that becomes crucial to the transformation you see in the circle.”

The restorative justice programs described by Weisberg and Mills involve efforts to confront the perpetrator with the consequences of his or her actions in a manner that can reduce recidivism, reduce incarceration, and mend community fences.

But it may still take a lot more public examples like the Botham Jean tragedy to win acceptance by policymakers and practitioners in the U.S. criminal justice system.

Additional reading: Why Prosecutors Should Add Restorative Justice to Their Toolbox, by Emily Mooney and Arthur Rizer, The Crime Report, Oct. 31, 2019

Lauren Sonnenberg is a contributing writer to The Crime Report. She welcomes comments from readers.

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