Restorative Justice — a common sense approach

By Reade Brower | Jan 23, 2014

"Traditional criminal justice seeks answers to three questions: What laws have been broken? Who did it? What do the offender(s) deserve? Restorative justice instead asks: Who has been harmed? What are their needs? Whose obligations are these?"

— Howard Zehr, The Little Book of Restorative Justice

Everybody is mad at me

So I must have done something right.

Long ago I learned not all negotiations can be “win-win." I also learned you can’t judge the success of a negotiation by that one simple premise.

In fact, when everyone walks away from a negotiation unhappy, you know that the result must have been fair. It means both sides had to give up something to make the deal work.

Last week’s column concerned the two biggest stories of the week: the debacle in Rockland’s RSU 13 and an incident in Camden. The results from the commotion left me perplexed. Both sides were upset with what I wrote and many discussions began from that column. On the one hand, it is good when we have discussions, on the other, discussions usually lead to more discussions and no solution.

The common sense solutions I offered last week were both rejected categorically. I understand the reluctance, even for the innocent, to take a lie-detector test and suggesting it can be insulting (even though my premise was to protect the accused and have both sides involved).

I don’t understand the rejection of binding arbitration as a solution in RSU 13 because a long drawn-out fight causes more hard feelings, more expense, and more time.

Both conflicts will continue down traditional lines of justice, which is probably good for the newspapers, who will get to report each step, and the lawyers who benefit financially, but bad for the people involved and the people affected.

Eventually these conflicts will find resolution. But then what? More suits and countersuits? Hard feelings that will go on into the future, perhaps forever? Will there be any closure?

I have always been a fan of conflict resolution so, for general purposes, I will add another “common sense” solution to the table this week.

Let the legal process include at its front line the Restorative Justice approach.

Restorative Justice

Restorative Justice techniques are based on bringing the offenders and accusers or victims together. The community is involved, and instead of the emphasis on punishment, or satisfying the letter of the law, the idea is “to repair the harm they’ve done by apologizing, returning stolen money, or by performing community service,” according to the article, "A New Kind of Criminal Justice," in Parade, Oct. 25, 2009, p. 6.

Restorative Justice creates a dialogue between the perpetrator and the victim, and it concentrates on healing for both parties rather than punishment, or winning and losing. By creating accountability, the offender is forced to understand how the other person, and the community, feels about what they have done.

In essence, it is about creating a learning moment that replaces emotions and feelings like shame, which in my experience never helps anyone long-term. If we are ruled by shame, or the fear of being caught, it may be somewhat pragmatic, but it is polar opposite from ruling with love, where we actually understand the pain of the other side, and victims can most often find forgiveness when their needs are met. In this case, it is the basic need of feeling heard.

Considering restorative justice as a balancing act of rehabilitation, while protecting society, one can see that once the needs of the victims are satisfied, the offenders are free to learn new lessons, and most importantly to move forward with love, instead of anger, which makes it easier for them to forgive themselves. Forgiveness allows society to also move forward in a positive way that corporal punishment does not; it can be done without forgoing society's need to protect its citizens.

It certainly is not a foolproof common sense approach, but it is a step toward fixing the fundamental core and the causes of injustice. It has been successfully used in situations where a crime was asserted before an arrest or citation has been issued. In these cases, the parties are brought together to discuss the incident, and both tell their stories and share their anger and hurt. They share how it has affected them, their families, and the community chimes in as well. Often, issues are resolved in a manner that works for both parties and, most importantly, both parties move forward with more power, not less. What occurs is not just a shift, rather a lifting of power and understanding for both sides.

The key to its success is the dignity of both the accuser and offender is held intact, while they both find a way to fulfill their needs in the process.

Suffolk University, College of Arts & Sciences, Center for Restorative Justice, put out a piece called, “What is Restorative Justice,” and defined it as, “a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. Rather than privileging the law, professionals and the state, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative justice seeks to build partnerships to re-establish mutual responsibility for constructive responses to wrongdoing within our communities.”

John Braithwaite, professor and criminologist from the Australian National University, wrote in 2004 that restorative justice “is a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process.

"The process of restorative justice necessitates a shift in responsibility for addressing crime. In a restorative justice process, the citizens who have been affected by a crime must take an active role in addressing that crime. Although law professionals may have secondary roles in facilitating the restorative justice process, it is the citizens who must take up the majority of the responsibility in healing the pains caused by crime.”

It has also been shown to work in domestic violence cases and empowers all parties who participate.

It has also proved to reduce recidivism, which is no small victory.

There are lots of methods to restorative justice and most involve a circle that includes professionals, victims, offenders, family, and community members, who are touched in some way by the incident. The focus is on the impact the event had on you, and the personal piece is why it is often so effective because its foundation is empathy, a powerful emotion that can be produces love, verses anger or hate.

I also believe it works because it is not adversarial in its nature; litigation, in its native form, is just the opposite.

Having the community focused on being the lead on this takes us to the premise that we must be either part of the solution or part of the problem.

As Rodney King once said, “Can’t we all just get along?”

Turn the Page. Peace out; Reade

Reade Brower can be reached at: reade@freepressonline.com.

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