The promise — and problem — of restorative justice ~~ Jerusalem Demsas

https://www.vox.com/22979070/restorative-justice-forgiveness-limits-promise

~~ recommended by emil karpo ~~

 

Defining forgiveness is still a matter of great debate, but philosophers ground the concept in two things: Forgiveness requires one person to have caused another harm and for the victim to forswear revenge or bad feelings toward their transgressor.

That leaves a lot more unsaid than it clarifies. Is the purpose of forgiveness to get back to normal? What are the power relations inherent in asking for and granting forgiveness? Who has the authority to forgive? Most importantly, why is forgiveness necessary?

The rise of restorative justice programs has introduced the concept of forgiveness — usually kept far away from America’s courtrooms — to the criminal justice system. While forgiveness is not the focus of these programs, its potential fills the air as victim, offender, and community members all meet in the same place.

These programs are alternatives to the traditional sentencing models and offer an opportunity for victims, offenders, and members of their respective communities to meet and, ideally, repair harm, answer lingering questions, and restore broken bonds.

But restorative justice’s answers to forgiveness’s thorniest questions and its relationship to the concept more broadly are up in the air. While forgiveness is widely seen as both virtuous and healing, the specter of forgiveness that hangs above restorative justice proceedings can be a hollow and fragile imitation of the real thing, and it carries with it the potential to reinforce cycles of violence.

What is restorative justice?

There is no one definitive answer to this question. Restorative justice is a burgeoning philosophical framework that asks people to rethink the best way to respond to harmful behavior. Perhaps the most expansive definition comes from Griffith University criminologist Kathleen Daly, who calls restorative justice “a set of ideals about justice that assumes a generous, empathetic, supportive, and rational human spirit.”

RESTORATIVE JUSTICE IS “A SET OF IDEALS ABOUT JUSTICE THAT ASSUMES A GENEROUS, EMPATHETIC, SUPPORTIVE, AND RATIONAL HUMAN SPIRIT”

Criminologist Howard Zehr, the “grandfather of restorative justice,” began his work in the 1970s for two main reasons: The harsh, punitive, and counterproductive ways that the criminal justice system often responds to offenders and the growing anger that victims are often entirely shut out of the criminal justice process.

“We were really concerned that victims were not only being left out of the justice process, but they were re-traumatized by it. So we wanted to provide a better experience and more options for victims,” Zehr explained in an interview published by Eastern Mennonite University, where he founded the Center for Justice and Peacebuilding in 2015. “Accountability is understanding the harm you’ve caused and doing something to make it right.”

Restorative justice has spurred the development of private and public programs within schools and universities that seek to apply restorative justice principles to conflicts that arise within these institutions. Even more crucially, there are restorative justice programs that seek to replace or reform existing practices within the criminal justice system; state-sanctioned programs now exist in the vast majority of American states.

America’s struggle for forgiveness

Amanda Northrop/Vox

Restorative justice is not a fact-finding process and so it cannot in its current form replace the adversarial justice system, which seeks to determine whether the accused is guilty. Its role generally comes after someone’s guilt has already been determined, either through a plea agreement or a trial. Then comes sentencing.

The sentencing process generally follows this pattern: An offender is convicted of a crime, the judge sets a date for sentencing, and then the judge conducts a pre-sentence investigation to determine the appropriate sentence. According to the American Bar Association, this investigation “may consider the defendant’s prior criminal record, family situation, health, work record, and any other relevant factor.” In the vast majority of cases, the sentence is solely up to the judge.

Restorative justice programs in operation throughout the country — some of which explicitly label themselves as such and some of which are clearly influenced by its principles — seek to upend the post-conviction process. The programs are run by different groups, some by state and local governments and others by independent or even for-profit organizations. Participation in these programs varies, with some states allowing these programs to exist as alternatives only for certain crimes or certain offenders (e.g., juveniles). These programs are generally opt-in for offenders in qualifying cases, and so, the vast majority of offenders still go through the traditional sentencing process.

 

 California state Sen. Steve Glazer discusses a state-funded restorative justice program during a news conference in Sacramento, California, in 2019. Glazer’s measure, SB 678, which was co-authored by Assemblymember Susan Eggman, left, created a pilot program where the victims of crimes can deal directly with their offenders.  Rich Pedroncelli/AP

According to research by Occidental College law professor Thalia González, as of July 2020, “The only states that have not codified restorative justice into criminal law are North Dakota, Rhode Island, South Dakota, South Carolina, and Wyoming.” (Restorative justice programs can be found outside the US too, from Canada to Ireland to Australia.)

Impact Justice, a criminal justice reform group, lays out a simple model for understanding restorative justice when it comes to criminal proceedings. Instead of asking what law was broken, who broke it, and what punishment is warranted — as our punitive system does — restorative justice asks who was harmed, what do they need, and whose obligation is it to meet those needs.

Typically, these programs involve what practitioners call a “conference” where the victim, offender, and community members (often friends or family of both parties) sit down. The offender will apologize or take responsibility for the harm they have caused and seek to make amends, and the victim is given the opportunity to ask questions and make clear all the ways the crime has impacted them and their community.

While these conferences vary widely, restorative justice facilitator sujatha baliga explained for Vox what session results can look like: “At the end of the process, which typically ends with one or more face-to-face sessions with the entire circle, a plan to meet the survivor’s self-identified needs is made by consensus of everyone present. The responsible person is supported by family and community to do right by those they’ve harmed. For example, if joining a sports team is a part of the responsible person’s plan to help them stay out of trouble after school, people in his circle agree to take him to practice, or pay for the enrollment fees.”

It’s notable that the majority of these programs are for juvenile offenders; Gonzalez found that 91 laws in 33 jurisdictions are related to restorative justice programs aimed at minors, while just 42 laws in 15 jurisdictions are related to adult offenders. While the research is mixed, there is good evidence that programs focused on minors have been found to reduce recidivism.

“ACCOUNTABILITY IS UNDERSTANDING THE HARM YOU’VE CAUSED AND DOING SOMETHING TO MAKE IT RIGHT”

A 2017 meta-analysis of restorative justice programs, which looked at dozens of research projects and studies, found “a moderate reduction in future delinquent behavior relative to more traditional juvenile court processing.” The authors, however, were wary as to the reliability of these results since reductions were smaller for the “more credible random assignment studies.”

Encouragingly, one recently released paper looked at offenders ages 13 to 17 that were randomly assigned to either go through a restorative justice program or the traditional process. After six months, the former group was rearrested at a rate 19 percentage points fewer than those in a control group prosecuted in the ordinary juvenile justice system.

What restorative justice can — and cannot — do for victims

Restorative justice is perhaps overly optimistic about what it expects. It imagines a world where victims can be magnanimous about some of the most heinous transgressions, guilty offenders can be truly apologetic, and the broader community is positioned and able to help both parties.

According to University of New South Wales Sydney criminologist Julie Stubbs, there is disagreement over whether restorative justice programs actually prioritize victims. Participants cite high levels of satisfaction, but it’s unclear how much of this can be attributed specifically to the programs as opposed to selection effects (are the types of people ending up in restorative justice programs somehow different from people who aren’t?), the effects of time, or support from their communities. She also notes that satisfaction has been conceptualized and measured inconsistently, making it hard to be definitive about victims’ experiences.

Cymone Fuller, co-director of the Restorative Justice Project at Impact Justice, told Vox that victims often come to restorative justice conferences looking for answers: “They might be asking for very practical things like, ‘I want my car back,’ and then sometimes they really are looking for a fuller narrative for what happened to them.”

One study by Fuller’s organization of 100 cases that were diverted to a restorative justice program in Alameda County, California, found that 91 percent of the victim participants who completed the survey would be willing to participate in another conference, and the same percentage would recommend the process to a friend.

When asked about the role of forgiveness in these encounters, Fuller argues that “it’s so important to disentangle this assumption or this requirement that people assume it’s necessary for restorative justice to equal forgiveness. There is no expectation that at the end of this it becomes this huge moment of forgiveness.”

 

 A letter written by a shoplifter is seen tacked to the wall at the Longmont Community Justice Partnership in Longmont, Colorado. The restorative justice program there includes apology letters from offenders.  Matt Jonas/Digital First Media/Boulder Daily Camera via Getty Images

There are some practical problems with seeking forgiveness within a criminal justice system, even one purporting to be “restorative.”

While there may be those among us who can forgive an unrepentant offender — if forgiveness is even the right word for such an act — for most of us, forgiveness requires a sincere apology. There isn’t extensive research on the question, but a set of interviews in 1999 with minors who went through a restorative justice program indicated that while 61 percent of offenders said they really were sorry, just 27 percent of their victims thought the offenders were sincerely apologetic.

This could be because in some restorative justice programs, facilitators require participants to apologize. Victims can feel as though the apology is only happening because the perpetrator is being prompted to give it, not because they truly feel contrition.

Even with a sincere apology, the coercive environment extends to the victim as well.

“Forgiving under government pressure is not really forgiveness, and it places further burdens on people already victimized,” former Harvard Law School dean Martha Minow wrote in her book When Should Law Forgive?

It’s uncomfortable not to accept someone’s apology, especially in front of other people. In most restorative justice settings, victims are not only in front of a facilitator but also the offender’s family or friends and members of their community. Some research has shown that in these communal conference situations, victims will say they forgive the offender simply to avoid the embarrassment of not doing so.

It is bad for victims to feel forced to accept their perpetrator’s apology in and of itself, but the larger concern is that it could lead to further abuse.

“THERE IS NO EXPECTATION THAT AT THE END OF THIS IT BECOMES THIS HUGE MOMENT OF FORGIVENESS”

“There’s a danger about pressures to forgive, particularly on some victims more than others,” York University philosophy professor Alice MacLachlan cautions. It’s helpful to think about this in terms of intimate partner violence and the cycle of abuse, as that cycle includes reconciliation. Following a period of building tension, an incident will occur, perhaps physical violence, after which the perpetrator — overcome with guilt or simply scared that their partner will reveal the crime to the community or law enforcement — will attempt to reconcile. This reconciliation process often includes pleas for forgiveness and, if the victim relents, can bring the two closer together and lay the groundwork for continued abuse.

Restorative justice conferences could unwittingly play a role in this cycle of abuse by facilitating apologies and eliciting forgiveness, potentially laying the groundwork for further harm. As Stubbs writes, because “domestic violence is commonly recurrent” and the “threat of violence may be ongoing and not reducible to discrete incidents,” restorative justice programs that seek to find closure for a specific offense are inappropriately theorizing how this crime functions.

“I came to this whole work out of concern about mass violence, genocide, atrocities, and seeing cycles of violence,” Minow told the New Yorker’s Isaac Chotiner about her work on forgiveness in the criminal justice system. “And the cycles of violence are perpetuated by resentments because of the way the last cycle of violence was resolved. I fear that that’s where we are living right now, and that there are many justified resentments. And maybe some unjustified ones, but, because there’s a perception that some people are treated better than others, we are laying the seeds for further conflict.”

Forgiveness and power

At its root, forgiveness is about letting go of justified negative emotions and a desire for retribution. It is also about giving up a certain form of social power that victims hold.

 

 Martha Minow at Harvard University in 2013.  Paul Marotta/Getty Images

“Expectations of forgiveness are raced and gendered,” Minow argued on the Brennan Center for Justice’s podcast. “They’re also about class. They’re about power, but that’s partly because forgiveness is one of the powers of the weak. To claim the ability to forgive — and let’s be clear, to not forgive — is to claim the position of equality and dignity. And that’s a power that we shouldn’t actually ever take away from people.”

Before forgiving, victims can try and gain necessary concessions from society or from offenders, but after, forgiveness implies that the victim has moved on and society has permission to do so as well. But a community getting over the impact of a specific crime without addressing the underlying systemic reasons why the wrong happened in the first place can just make things worse.

Put another way, with forgiveness, victims provide society a catharsis and relief from the tension of recognizing that a wrong must be rectified.

It’s therefore not surprising that there is a notable tension in left-leaning political spaces between calls for leniency and restorative justice for criminal offenses, and calls for punitive measures against sexual abusers as the Me Too movement gained traction.

Georgetown University philosophy professor Alisa Carse has seen her students’ reluctance to bring restorative justice programs to their college campus for the purpose of resolving sexual misconduct cases. “I was so surprised,” she told Vox. “But a lot of the students felt like it would convey that we think these crimes are less important.”

“We tend to think of forgiveness in very transactional, dyadic terms,” she adds, “but often it’s the broader community that’s playing a very important role both in bolstering the wronged party and in validating that what was done counted as a wrong.”

If that is lacking, Carse argues, and you have a culture that valorizes forgiveness, it leads to isolation of the wronged party — creating a “toxic” situation.

At first glance, it can seem like a simple case of hypocrisy: liberals that support less punitive measures for criminals who are unlikely to hurt them, but more punitive measures for criminals when they view themselves as more likely to be potential victims. But perhaps there’s more than that going on; it’s not difficult to see how sexual assault cases are distinct. Unlike a murder or a robbery where society regularly recognizes a clear victim and clear aggressor, in cases of sexual misconduct, society has so often shown indifference — shrugging at the problem, as if adjudicating “he said/she said” is only possible when sexual violence isn’t involved.

RESTORATIVE JUSTICE ASKS WHO WAS HARMED, WHAT DO THEY NEED, AND WHOSE OBLIGATION IS IT TO MEET THOSE NEEDS

However, as baliga wrote for Vox in 2018, restorative justice has been shown to work in some sexual violence cases. In one promising example, baliga recounts a conference she helped facilitate between a young woman, Sofia, who had been assaulted by a classmate, Michael.

“Sofia’s transformation was breathtaking — she found her voice that day. And by the end of our time together, it felt like Michael had gained an understanding of consent. As we moved into creating a plan to repair the harm, Michael offered to clear up Sofia’s reputation by posting on social media a public apology to her, which included the words ‘she didn’t lie.’ Michael also agreed with Sofia’s request for him to spend a month of school at home to give Sofia space. Afterward, everyone except for Michael and Sofia hugged.”

Baliga writes that Sofia’s self-confidence returned to her in the weeks following the conference and that, following graduation, Michael wrote a research paper on sexual violence.

Restorative justice can, then, help restore both individuals to a community. But the expectations may be too high. In encouraging these interactions between offender and victim, restorative justice makes the potential for forgiveness much more real, which may play a part in why many victims of violent crime reject the idea of entering into a conference with their offender.

“If we’re going to think about forgiveness in terms of restorative justice, the only morally and politically careful way to do that is to recognize the legitimacy of the unforgiving victim,” MacLachlan told Vox. “Not forgiving is a legitimate response to being seriously harmed.”