Can ‘Mainstream’ DAs Become Restorative Justice Supporters?

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Why hasn’t restorative justice caught on in prosecutor’s offices around the country?

While a small but influential group of big-city “progressive” prosecutors are actively using the concept, which offers rehabilitation and “healing” to offenders as an alternative to punishment, mainstream DAs remain skeptical or, in some cases, hostile.

Many are dissuaded by the additional resources required for the programs and others feel constrained by local sentiment that emphasizes “tough on crime” approaches; but these objections could be overcome by demonstrating how restorative justice can “align” with traditional justice goals—including better serving the needs of crime victims, argues a Fordham Law Review paper.

Ultimately, broader acceptance may have to await a change in the political climate after the 2020 elections, write the authors, Lara Abigail Bazelon of the University of San Francisco School of Law, and Bruce A. Green of Fordham Law School.

“For restorative justice to gain a foothold in counties across the United States…[prosecutors] will have to be convinced that it is worth the time and expenditure of funds and political capital,” the paper said.

“Empirical data, an individual prosecutor’s openness to the ideas of progressives, and political considerations—which will be shaped by the results of the 2020 presidential election—are all crucial factors in the analysis.”

Nevertheless, added the authors, an expansion of the restorative justice “experiment” is likely, considering that many mainstream DAs have already accepted the idea of drug courts and other problem-solving courts that pursue similar methods.

Prosecutor buy-in is critical to broader acceptance of restorative justice strategies since only a DA can assent to alternatives to criminal prosecution.

But even those who might be willing to consider it face logistical and structural challenges, said the paper.

“The prosecutor must team up with a social service agency capable of administering a restorative justice program and hire attorneys or other staff within the office to coordinate and help administer it, a process that involves everything from selection criteria to case monitoring to data collection to assessing outcomes,” the authors wrote.

“It is far less costly to negotiate non-prosecution and deferred prosecution agreements containing other conditions and restrictions. Unless the prosecutor has received state or private funding to support a restorative justice program, as some have, such a program may not seem feasible even if the prosecutor is enthusiastic.”

Complicating the problem is the “current presidential administration’s hostility to progressive prosecutors and their innovative methods,” the authors wrote, quoting disparaging comments by Attorney General William Barr, who told a conference of the Fraternal Order of Police in August 2019 that progressive DAs were “demoralizing to law enforcement and dangerous to public safety.”

The Evidence

Despite the opposition, the authors maintain that restorative justice processes have been proven to better reduce recidivism.

A study by researchers at Sam Houston State University found that in a sample of 551 at-risk-youth who completed restorative justice programs between 2000 and 2005, only 40 percent went on to reoffend in a 3.5 year period.

This recidivism rate is lower than the same sample size of youth offenders who did not go through a program, and ended up re-offending nearly 50 percent of the time.

Moreover, The Crime Report recently reported on a study that found youth who participated in the restorative programs “refrained from committing a new crime for a longer period than comparable youth who were referred to juvenile court.”

In other words, “restorative justice programs put fewer people behind bars, while simultaneously promoting public safety,” The Crime Report said.

The authors compared the restorative justice process to a drug treatment program, writing that “the offender must undergo rigorous rehabilitative processes, and intensive supervision, and meet any number of benchmarks as a condition of a non-prosecution agreement.”

There are only four basic pillars for the restorative justice process:

      • To promote a mediated discussion between an offender and victim;
      • To give the victim an opportunity to explain the impact of the offense;
      • To give the offender a chance to apologize and reckon with the root causes of the offending behavior; and
      • To develop and then implement a plan to repair the harm and make amends.

The authors point out that this process is “restorative” in two respects: it helps make offenders atone and look within to identify the source of their criminality; and it restores the victim’s well-being and emotional health.

These types of agreements typically involve juvenile and young adult offenders, and even some adult offenders that have committed low-level or nonviolent crimes. Moreover, “they have rarely been used in cases of adult felony offenders charged with serious violent crimes,” since typically, prosecutors steer towards criminal punishment for felonies, rather than rehabilitation.

High-Profile Advocates

The authors highlighted San Francisco District Attorney Chesa Boudin who was elected on a platform that included the restorative justice model. Boudin, a former public defender, said that as the son of incarcerated parents, it was a personal cause.

“Restorative justice saved me,” Boudin said, “and did more to rehabilitate my parents than any number of years in prison ever could.”

Brooklyn District Attorney Eric Gonzalez also believes in restorative justice—so much so that his office formed a partnership in 2017 with Common Justice, a nonprofit that offers restorative justice as an alternative to jail and prison for young people ages 16-26 charged with serious violent felonies that include robbery, assault, and attempted murder.

Gonzalez even created a reform plan titled “Justice2020” with restorative justice as its cornerstone.

“Prosecutors should think carefully of what they’re hoping to achieve and why,” Gonzalez was quoted by The Chief News when announcing the initiative.

“What resolution is the best for this particular defendant, for this victim and for our community? Will this intervention keep us safer or not?”

A Need for Change

The experience of their colleagues around the country should persuade prosecutors to be open to the concept as a plus for the offender, the community, and the victim.

By breaking away from harsh binary thinking of what justice and punishment means, the authors say, real change can take place.

The authors conclude, “The key question is whether the public interest is best served in a given case when, rather than being convicted and punished, an offender successfully completes a restorative justice process.”

But in order to win more converts, advocates of restorative justice should not try to claim too much, the paper said.

“It is not enough and, indeed unhelpful, to say, ‘the current system has failed so let’s replace it with radical new plan,’ ” the authors wrote.

“Instead, proponents must argue that restorative justice serves the public consistently with conventional criminal justice philosophies, policies, objectives, and principles.

“A starting point, in our view, is to acknowledge that the criminal justice process serves multiple objectives, many of which are in tension in any given case. No approach ideally serves all objectives. But, in some cases, on balance, restorative justice may be the preferable approach among the alternatives.”

The paper suggested that the argument that will “best appeal” to conventional prosecutors is that restorative justice is “not unlike other diversion programs in that it will sometimes be the best way to serve the mixture of public interests that prosecutors are expected to pursue through the criminal process.”

Lara Abigail Bazelon is a professor of law and holds the Phillip and Muriel C. Barnett Chair in Trial Advocacy. She also is director of the Criminal Juvenile Justice and Racial Justice Clinical Programs at the University of San Francisco School of Law.

Bruce A. Green is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics and chairs the ABA Criminal Justice Standards Committee and the Multistate Professional Responsibility Examination drafting Committee.

The full paper can be accessed here. 

Andrea Cipriano is a staff writer for The Crime Report

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