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Law students find a role: restorative justice

Restorative Justice
The concept of bringing victim and offender together for dialogue—and possibly peace—is one more countries are adopting.

The restorative justice movement has gained traction in justice systems across the western world. This rapidly expanding movement calls for a fundamental change in the way our justice system operates—a shift in focus from an offender’s relationship with the law to an offender’s relationship with his or her victim.

Steadily, law students have become an integral part of this movement through their work in law school clinic programs springing up all over the country.

Understanding the trend

The goal of restorative justice is to find healing for all parties involved. It’s based on a philosophy in conflict resolution that focuses on the relationships residents share as part of an integrated society.

One of the main goals of restorative justice in the context of the justice system is to create an infrastructure and environment in which offenders and victims can come face to face to discuss such topics as the nature of the offense, how the offense affected each party, and the proper reparation.

“Restorative justice is striving to heal the harm between groups of people when they harm one another,” said Michael Gilbert, executive director of the Texas-based National Association of Community and Restorative Justice. “Restorative processes are striving to find a way to heal harm that’s not a violation of law but a violation of relationship.”

In other words, this philosophy aims to mend relationships between members of society on an individual level, where meaningful healing can repair the bond between residents.

“All of us are living in relationship to one another, whether we recognize it or not,” stated Jonathan Scharrer, director of the Restorative Justice Project at the University of Wisconsin Law School in Madison.

Restorative justice measures give offenders a special opportunity to fix relationships they’ve damaged. “It’s the ability to own up to what you’ve done to people you’ve done harm to, to listen to them about the impact you’ve made on them, and then to discuss how to repair the harm,” Gilbert said.

In doing so, restorative justice encourages people who’ve made mistakes to take responsibility for their actions in a personal, transformative way.

“The point here is that we’re trying to find a way that focuses less on punishment and more on accountability,” Gilbert said. “Repairing the harm isn’t the state’s obligation. It’s not the justice system’s obligation. It’s your obligation. This way of thinking about justice allows the correct person to make amends and repair the harm.”

Departing from the norm

This philosophy marks a significant departure from the traditional legal system, which focuses on how an offender’s behavior violates the state, as opposed to the impact of the offender’s crime on the victim.

“The traditional system is focused on the offender, and in the restorative framework, you instead look at the victim first,” Scharrer said. “Rather than the state being the primary victim, here we look at the direct victim.”

By focusing first and foremost on the direct victim’s needs, restorative justice is more likely to make the victim whole. Scharrer said three questions drive this effort: “Who has been harmed? How have they been harmed? And how do we repair that harm?” he explained.

Restorative justice also departs from legal tradition by encouraging communication between victims and offenders, rather than keeping them apart.

“Whereas traditional justice processes tend to restrict communications and often ignore human relationships, restorative justice maximizes communication and relationships,” said Ted Lewis, a restorative justice consultant and trainer with the Center for Restorative Justice and Peacemaking at the University of Minnesota in St. Paul. “Those are two words that define the core of it.”

The evidence shows it works

Growing research indicates that restorative justice consistently yields benefits the traditional legal system hasn’t provided. Gilbert professed that he first relied on the traditional, legalistic framework before he converted.

“Wherever these restorative justice approaches are being applied, we find positive results generally,” he said. “It works far better than traditional systems. The evidence is mounting around the world—fast.”

Benefits include lower rates of recidivism; higher compliance with court orders, restitution payments, and fee payments; and higher satisfaction among victims. “When you dignify offenders and hold them to higher standards, they tend to succeed,” Lewis said.

A 2016 study published in Youth Violence and Juvenile Justice examined 551 youth averaging 15 years old who were assigned to restorative justice or traditional court proceedings between 2000 and 2005. Juveniles who experienced the traditional court proceeding re-offended within the 3.5-year study period almost 50 percent of the time. Juveniles involved in the restorative justice procedures re-offended 31 percent of the time.

Likewise, in 2007, the Smith Institute released a meta-analysis that reviewed 36 direct comparisons between conventional criminal justice and restorative justice in the United Kingdom. The study similarly concluded that restorative justice processes reduced recidivism for violent and property offenders and reduced government costs when employed for diversion.

For these reasons, restorative justice reaches both sides of the political aisle.

“There really is bipartisan interest in it because studies are showing that punitive measures are counterproductive,” Lewis said. “Taking punitive measures is costlier, and it alienates offenders from society.”

Restorative justice strikes a balance that’s not hard or soft on crime, he added. “Restorative justice is a third option,” Lewis said. “It’s smart on crime.”

It started with apologies

Taking advantage of centuries-old practices to mend harms between community members, the idea of restorative justice began to solidify in the late 1900s. One probation officer, part of the Mennonite community in Kitchener, Ontario, in 1974, established the catalyst point for restorative justice in the modern western world. That year, two teenagers damaged 22 homes during a vandalism spree, and their assigned probation officer secured permission from the court to bring the teenagers to apologize to all the affected victims.

“It opened the imagination to bringing victims and offenders together, rather than keeping them apart,” Lewis said.

Shortly after, a founding member of the restorative justice movement, Howard Zehr, established the first victim offender reconciliation program in the United States in Elkhart, Ind. Mark Umbreit, who worked alongside Zehr, later built on Zehr’s efforts by laying the groundwork for applying restorative justice techniques to violent crimes at the University of Minnesota.

Through the 1980s and 1990s, restorative justice processes spread into schools, prisons, international peacemaking, and other contexts, Lewis noted. During the 2000s, many communities recognized that restorative justice techniques were versatile in nature.

“Restorative justice pushed into the prevention realm, such as in schools,” Lewis said. “It started going upstream to help build restorative cultures that can resolve things and empower people to handle things at earlier stages.”

EU and U.S. states lead

Roughly 20-30 nations have implemented programs that opt first for relational justice solutions before considering legalistic options.

“These approaches are now required in all criminal codes for every European Union nation,” Gilbert said. “It’s also encouraged very strongly by the United Nations.”

In the United States, several states, including Vermont and Washington, have begun establishing restorative measures in their justice systems. Colorado has been particularly successful at incorporating these measures into its legal system.

“Colorado is leading the nation in integrating these ideas,” Gilbert said. “It’s now a possibility under law in Colorado that if a victim wants to have victim-offender mediation as part of case processing, they can ask for it as a legitimate approach.”

Lewis agreed that Colorado is at the top of the list of leaders but noted that Minnesota, California, and Texas have taken advantage of restorative justice processes as well, particularly in school settings. Lewis believes restorative justice will only continue to spread.

“There’s always resistance because we’re still in that punitive mindset,” Lewis said. “We somehow think in our guts that punishment works, but restorative justice is definitely expanding. The challenge is that if funding isn’t stable, these programs rise and fall really easily.”

Likewise, Gilbert said he foresees traditional techniques taking a backseat to restorative justice.

“Over the next 50 years, traditional legal systems of justice are going to become a last resort,” Gilbert said. “We’ll still need prisons, and we’ll still need courts when things don’t work out. But the first options will be the relational ways of thinking about justice.”

As evidence of the idea that restorative justice is spreading, fewer than 200 people attended the National Association of Community and Restorative Justice biannual National Conference on Restorative Justice in 2007. More than 1,300 people attended in 2017.

Law students join the team

A number of law schools have taken steps to include restorative justice in their curriculum. Here are just a few:

• Campbell University, Norman Adrian Wiggins School of Law in Buies Creek, N.C., maintains the Restorative Justice Clinic, which allows students to foster dialogue between victims and offenders in cases referred by juvenile courts and the local school system.

• The John Marshall Law School in Chicago boasts a Restorative Justice Project that trains students in restorative justice techniques by evaluating existing case law on the topic.

• Vermont Law School in South Royalton allows students to specialize in restorative justice, which includes classes in the theory and practice of restorative justice, as well as the development of the philosophy.

Among the most prominent and well-established restorative justice clinics in the United States is the University of Wisconsin Law School’s Restorative Justice Project, formed in 1987. The clinic allows students to guide victims and offenders through face-to-face discussions in the aftermath of serious crimes and gives students the chance to partner with local community organizations to develop and promote restorative justice measures in the traditional legal system.

Scharrer, who heads the program, leads six UW law students at a time through a year-long clinic experience. Victim-offender dialogues, including student preparation leading up to those meetings, is a significant part of the clinic experience.

The class breaks into pairs, and each pair goes over a victim-initiated victim-offender dialogue. Students may spend anywhere from six months to two years preparing to bring the victim and offender together for their first—and typically only—in-person meeting.

Students will pour over court files to learn about the offense, draft and send the offender a letter to learn whether the offender is willing to meet the victim, engage in individual meetings with the victim and offender to define their goals for the meeting, and check in with the offender’s social worker or parole officer, among other responsibilities.

The majority of offenders enter the clinic post-adjudication. Typically, the offender is incarcerated and serving a lengthy prison sentence. Nonetheless, sometimes individuals come to the clinic to address crimes for which the statutes of limitations have long passed or even crimes that were never reported. Crimes range from burglary to incest to homicide.

Scharrer said when a victim requests to meet with an offender, the offender accepts in a majority of cases. “Offenders may have had a transformation,” he said. “Other people who just feel really bad about what happened have a great deal of remorse over what they’ve done and want to express that to the individual they have harmed.”

Others hope to create a human connection with their victims. “They may want to present a more complete picture of who they are than is seen in court,” Scharrer said. “That mistake is only a very small slice of that individual’s life. We’re the sum total of our experiences up to that point.”

From the victims’ perspective, Scharrer said they’re often curious about their offender’s life and why the offender committed the crime. “Defendants rarely testify—and if they do, none of their testimony is all that satisfying to a victim or their family, who are hungry for information,” Scharrer said. “We try to fill in the holes where the justice system lets them down or didn’t give them what they were looking for.”

Dialogue changes students too

Students Sarah Arbaje and Olivia McCarthy, both participants in the clinic and in their second year at UW, recounted a recent victim-offender dialogue they led. The victim had requested to meet with the man who killed her brother in the 1980s; the offender was serving prison time but had begun his first steps in preparation for his release. Unlike in most of the clinic’s dialogues, this victim and offender had met before.

“It was really almost like a friendly conversation between them,” McCarthy said. “The offender came in, and he was showing the victim his resume and all of his plans for once he’s released.”

Given that the meeting wasn’t the first between the victim and offender, the students didn’t engage in as stringent of preparation as usual. Still, they met with both the victim and offender multiple times beforehand. During those
meetings, the offender made a special request of the victim to help him move forward since the offender and the deceased had been friends.

“I was wondering if she’d give me permission to visit his grave site,” Arbaje remembered the offender asking. The offender said, “The ‘no’ is hers to give, but I hope she knows it’s something I want to do to say goodbye.”

The victim granted that request.

“When we first talked to her, she originally told us, ‘I could never see myself going and doing this where victims and offenders speak together,’” McCarthy said. “During the dialogue she totally changed.”

The victim shed happy tears, and the offender nearly did as well, Arbaje said. By the end of the meeting, the victim was suggesting that she and the offender write a book and travel together to speak out about their experience under the restorative justice process, McCarthy added.

Arbaje and McCarthy said their experiences with restorative justice, even midway through their participation in the clinic, have changed the way they think about the justice system. “I just took it for granted that our system works a certain way,” McCarthy said. “It’s gotten me thinking a lot more about how when a crime is committed and we charge someone with that crime, it’s State v. Smith. Victims don’t get any decision-making role.”

Arbaje said her experiences at the clinic will affect how she practices law, even outside the context of criminal law. She says that’s true particularly when it comes to how to approach clients during stressful times in their lives.

“People don’t come to lawyers when they’re having a good time,” Arbaje said. “Vulnerable people are tougher to talk to. They’re justifiably guarded. They’re nervous. And they’re all over the place. I’ve learned how to structure conversations in these situations but still be myself.”

Danielle Maddox Kinchen Danielle Maddox Kinchen is a 3L student at the Louisiana State University Law Center, where she serves as a senior editor for the Louisiana Law Review and member of the Moot Court Board. She graduated Magna Cum Laude from Tulane University, where she majored in Political Science and English and served two years as the editor-in-chief of Tulane’s student-run newspaper, the Tulane Hullabaloo. Danielle formerly worked as a metro news reporter in Baton Rouge for Louisiana’s premier newspaper The Advocate. She also worked as a summer journalist intern and later freelancer for U.S. News and World Report. In addition, her work has been published in the Louisiana Bar Journal.