Restorative Justice and Sentencing

(this post by Keith Ogden)

This panel, chaired by Hastings Professor Kate Bloch, brought to light several different models of restorative justice in practice in California today. A common theme in this morning’s panel was, “What are we not addressing in our traditional approach to criminal justice system that causes (or doesn’t mitigate) high recidivism rates?”

Professor Bloch opened up the panel with introductions and a few remarks about restorative justice. She noted that restorative justice is an ancient model for resolving issues of crime and harm in communities. She highlighted several features common to the various iterations of restorative justice practice in world today, including offender responsibility/empowerment and creation of understanding and healing between victims and offenders. She framed the discussion by introducing the general concepts of Victim-Offender Mediation (VOM) and noting that VOM is used in some settings as a replacement for incarceration and sometimes, in various forms, as a supplement to incarceration.

Sunny Schwartz, Director of the San Francisco Sheriff’s Department’s Resolve to Stop the Violence Project (RSVP), shared reflections on her groundbreaking work with us. She reminded us that we’ve been implementing some form of criminal justice system in our state for 150 years without effectively including criminals, prison staff and others in the conversation about the purposes and outcomes of incarceration. She challenged us to think about who benefits from the system as it is.

Working within the system for over 25 years, Sunny has witnessed corrections fail the men and women who spend time in prison over and over again. She has seen three generations of family members in prison at the same time. She has seen recidivism persist at consistently high rates. She decided to do something.

In 1990, Sunny initiated programs to bring education and pro-social living (via open dormitories) to a prison drug program for women in San Francisco. However, recidivism remained high. In the 1990s she stumbled across restorative justice. Inspired by the emphasis on accountability, community involvement, and the underlying premise that crime hurts everyone, she told her boss, Sheriff Michael Hennessey, “we’ve got to start this” in our prisons. She did, and the RSVP program took flight.

Sunny’s greatest professional joy is her work with RSVP. The program takes 60 men who’ve been involved in violent crimes and who would traditionally be locked up in guarded prison cells, and places them in a dormitory setting with counselors. It brings victims who have suffered violent acts to share their stories with violent offenders. Sunny showed a short and powerful video depicting the program in action. One victim shared that “the violence does not end when the act is over.” An offender responded by saying that hearing such stories helped him become more aware of what it’s like to be on the other side. The video resonated with many audience members’ sense – the sense that drives Sunny – that inmates, even the many of the most violent inmates, can change for the better. An evaluation of the RSVP program by a Harvard psychiatrist has demonstrated that for participants who spend at least four months in the program, violent re-arrests drop by 80%.

Marissa Wertheimer, an attorney mediator at Marin Mediation Services and coordinator of their Victim-Offender Restorative Justice Program, shared her journey from social justice and children’s advocacy to restorative justice work.

Marissa raised the important question: “What do we as a community want to do when harm occurs?” The traditional answer is that we outsource our response to crime and harm to others – the police, the courts, the criminal justice system. Restorative justice challenges us to think well beyond rehabilitation and towards empowerment, healing and the responsibility of the community.

In her work with juvenile offenders, Marissa noted that follow-up surveys report 95% satisfaction with the Victim-Offender Mediation process. One might imagine that neither victims nor offenders would report such a high rate of satisfaction with the traditional criminal justice system.

Marissa’s description of restorative justice circles was fascinating. She first learned about the process a few years ago, and viewed it instantly as a means to improve upon traditional Victim-Offender Mediation. The restorative justice circle process involves three steps. (1) “Pre-circle.” The juvenile offenders and the victims have the opportunity to discuss who they feel needs to be in the circle and what they hope to achieve by participating in the circle. They also have an opportunity to opt out if they do not want to participate. (2) “Circle.” Victims and offenders meet in a mediated setting to attempt to reach a mutual understanding and develop a plan of action. Marissa emphasized that it is critical in this step to nail down specifics in order to be able to hold all involved accountable. (3) “Post-circle.” Follow-up. Is the plan being implemented? If not, why not, and what can be done to fix it?

Audience members brought up several questions and concerns. Is it possible for a criminal justice to utilize restorative justice to the exclusion of incarceration? Both panelists commented that some inmates will not respond to their programs and incarceration is necessary. Marissa noted that in New Zealand restorative justice is always the first option in addressing a crime and its attendant harm to the victim, the offender and the community. If restorative justice fails, then the traditional retributive system is invoked. Sunny shared that there all prisons should have programs like RSVP.

The question of whether restorative justice can work for violent offenders was raised. Sunny designed her RSVP program to offer hope for the most egregious offenders. Marissa noted that she is seeing more and more success with violent offenders.

Time was short and some questions were either not raised or not fully answered. For example, can restorative justice circles be used successfully for adult inmate populations? If restorative justice is supposed to be about making victim, offender and community whole, what role is/should the community be playing? How should studies be designed and implemented to assess the success and promise of restorative justice initiatives? Do we want to be “tough” on crime, or “smart” on crime? Marissa noted that the public’s concern for public safety will drive our choices about what system we put in place to address crime. That begs the question, “Does restorative justice meet the goal of increasing public safety?” Our panelists made a strong case that it does. The evolving practices within the realm of restorative justice offer hope that we can be smarter in how we address crime and harm in our communities by creating opportunities for healing and empowerment, and by reducing recidivism.