Legal system may benefit by using restorative justice over incarceration

WASHINGTON — Experience in the District of Columbia and Colorado indicates that restorative justice could play a key role in reducing crime, recidivism and the use of jail as a solution, according to panelists during an Oct. 29 session on restorative justice and the legal system sponsored by the Catholic Mobilizing Network.

Youths in Washington’s juvenile justice system had “worse outcomes” than those who averted the system, according to Seema Gajwani of the attorney general’s office. “They are less likely to be gainfully employed, to be married, to avoid substance abuse issues,” she said.

After becoming the federal city’s first elected attorney general, Karl Racine realized his office was the “gatekeeper” for the juvenile justice system in Washington, Gajwani added, although her office does not have jurisdiction over crimes committed by adults.

Racine was “very much focused on mediation. He built a restorative justice system in the prosecutor’s office,” Gajwani told conferees. Before implementing it, “he actually visited Germany and Portugal,” both of which employ restorative justice, and “studied New Zealand,” she said.

D.C. has been able to cut in half the number of judges needed to preside at juvenile criminal cases, from four to two, because of the drop in caseload, according to Gajwani.

The office has more recently “expanded (restorative justice) to serious and violent chronic offenses,” she said, including “stabbings and shootings and carjacking and burglaries. We want to give extra support to the young people engaged in this behavior.”

She added, “We’ve added to the restorative justice program a cognitive behavioral therapy component” to help address these issues.

Colorado State Sen. Pete Lee said he had made it his mission to incorporate restorative justice principles throughout the state’s justice system. He counted 37 different provisions in state law for restorative justice. A $10 fee on every criminal case legal filing in the state funds the state’s restorative justice initiative to the tune of $1 million a year, he said.

In Colorado, restorative justice is available for all juvenile and adult offenses, and in schools and jails. Lee said the legislation includes confidentiality provisions that information revealed in or before a restorative justice session is not used against the offending party. There is a 19-member coordinating council made up of representatives of different stakeholder groups in the state, Lee said.

“We’ve replaced resource officers in schools with restorative justice mediators,” he added. “Scores of schools all around Colorado are utilizing restorative justice to keep kids in school.” Colorado has a recidivism rate under 9%, and on a scale of 1 to 5, those who have used restorative justice sessions have given them an average rating of 4.9.

Lee said bipartisanship has been important to advancing restorative justice. “We’ve had split legislatures with Republicans and Democrats running different houses at different times,” he noted, adding that different groups within the state respond favorably to different appeals on restorative justice.

“To the conservatives, we talk about the saving of tax dollars. To the progressives, we talk about the fairness of it,” he said. “To the evangelicals, we talk about redemption. To moral conservatives, we emphasize individual responsibility. To law and order, we talk about reduced recidivism and restitution.

“To libertarians; we have a plethora of them; we have a system of people solving their disagreements among themselves,” he continued. “To victim advocates, we talk about respect and the beginning of healing.”

Under the typical “retributive justice” model, “we have created a criminal justice system that is far more criminal and less just,” Lee said. “We have created Incarceration Nation.”

Echoing statistics cited earlier in the presentation that showed the number of people in U.S. prisons skyrocketing from 250,000 in 1972 to 2 million in 2000, he said the United States contains “5% of world’s population, but a quarter of its prisoners.”

“Back up and think about how we’ve handled harm in our country ever since its founding. We assume someone is 100% a victim and someone is 100% a perpetrator. That’s the system I was brought up and raised in,” said Lara Bazelon, an attorney and author who worked for seven years in a public defender’s office. “My whole career was adversarial,” she added.

Bazelon told of one experience in which she represented a man wrongfully convicted of a crime for which there was no forensic evidence; he spent decades in prison.

“We had to try the case all over again using this adversarial system,” she said. “Not only was this incredibly painful for the client’s mother (in her late 70s) and my client, but it was also incredibly painful for the victim’s family.”

She added, “After he was exonerated, I started thinking about how all the people involved had been harmed. … Was there something else out there? I started looking at this whole idea of restorative justice.”

Eventually, Bazelon’s client went through the restorative justice process with the people who were behind his conviction.

“It really made me stop and think about what we were told. People want the person who harmed them to be hauled into court and given the longest sentence possible, even the death peaty,” Bazelon said. “It’s very much an essentialization of victims, boiling them down into a single identity. Going through the system for them is extremely traumatic — and the sentence does not heal them.”