COMMENTARY: Progressive prosecutors and restorative infrastructure

By Samuel C. Damren

There are now three elected county prosecutors in Michigan who have embraced “Progressive Prosecution.” The first was Carol Sieman in Ingham County, elected in 2016. This past election, Karen McDonald in Oakland County and Eli Savit in Washtenaw County joined the ranks.

Through their policies, these Progressive Prosecutors place new emphasis on issues of racial and social justice. But they do something else. For non-violent crimes and in select cases based on appropriate criteria, they share a commitment to principles of restorative justice as a substitute for incarceration.

Models of restorative justice have been successfully implemented in many countries as a standard practice. In criminal justice in the United States, elements of restorative justice can be found in local diversion programs, drug courts, juvenile proceedings and limited “pilot” projects, but they remain a patchwork solution in most States. Outside criminal justice, Michigan recently expanded restorative justice alternatives to school disciplinary matters. Funding for restorative justice programs is generally based on grants, not regular State or county annual budgets.

In partnership with educational institutions and others, our Progressive Prosecutors are now in a position to provide objective rigorous documentation of the operation of restorative justice programs in their counties, including bench marks, defined criteria and measurable outcomes. Ingham, Oakland and Washtenaw are diverse and populous counties with rural, suburban and urban constituencies. They provide a more than adequate statistically significant sample upon which to base future decision making.

In the Michigan criminal justice tool box, incarceration is the most expensive form of criminal sanction for taxpayers. If societal costs on the families of those incarcerated for non-violent offenses are included—loss of income, affordable housing and lost opportunities—the overall costs are even greater. Restorative justice programs are significantly less expensive and avoid collateral costs to family members.

That is not to say, however, that the costs of restorative justice programs are inconsequential. Indeed, without creating, funding and maintaining needed infrastructure for these programs, they can never achieve their intended goals. But this restorative infrastructure and what it must be designed to deliver is far different than the brick and mortar of prisons, guards and custodial staff.

I have some qualifications to speak on these issues. Nearly 20 years ago, I wrote an article on restorative justice published in the U.K. in the Journal for Legal Pluralism. The article was entitled “Restorative Justice, Prison and the Native Sense of Justice.” The article had an academic bent with focus on the origin of principles of restorative justice in Native societies. It is cited today in academic journals and books.

One of the principles discussed was the systemic need in Native society—founded on a complex weave of relationships between and among kinship groups—to restore balance to those relationships when they are disrupted by what Westerner’s would see as criminal offenses. The focus in the Native world was not on the offender as an individual. It was on how the acts of an offender from one kin group negatively affect other kin groups and to provide remedies for that wrong through various means.

Contrary to Jean-Jacques Rousseau’s fiction of the “noble savage,” the methodology for restoring balance between and among kin groups in Native societies can involve violence. However, unlike State society – focused more on the relationship between the individual and the State than on kin groups – there were no prisons in Native society.

To Western minds, this fact is startling and no less a person than Benjamin Franklin once made note of it when promoting the idea of having the Delaware join the United States as a separate State overseen by the Tribe. The practice of imprisonment was equally startling to the mind of Native societies. Indeed, it was regarded as absolutely evil by Native peoples who could not envision the individual being separate in identity or circumstance from the community of kin groups.

Our sense of community is dramatically different than the community existing in indigenous Native societies. In the latter world, the weave of kin group relationships is all encompassing and individuals are almost incapable of regarding themselves outside that lens. As a result, an “apples to apples” comparison of the mechanics for restoring balance to community in Native society compared to State society is impossible.

When one searches for mechanics available in State societies to restore an offender to community, fundamental questions come into focus. What is the “community” that we seek to restore a person to? Is the community that the individual comes from viable and functionally connected to the wider society? If it is, then the focus for support can be solely on the personal issues at conflict in the individual offender’s life.

But if the community to which the individual offender will be restored is challenged by circumstances outside the individual’s control, such as poverty, drug (opioid, meth or heroin) dependence, racial prejudice or other negative factors that the offender must nevertheless confront then additional supports for participants in the program will be needed. In those instances, the restorative justice program will be required to create an individual bridge and meaningful supports to enable the participant to somehow work around existing community negatives.

The restorative infrastructure to address these challenges is multi-faceted. It requires dedicated counselors, genuine opportunities for individual participants and supports that can be relied upon and are sufficient to meet the task.

To assist others in addressing these challenges, our Progressive Prosecutors might also look to squeeze even more data from their restorative justice programs. This set of data could be geared to address questions that many have regarding the restorative justice model in practice. Those questions include—What practices work in these programs? What don’t? How can a county considering restorative justice select the approaches that might work best in their community? How do you gauge success for these programs? What level of funding will be required for a restorative justice program to achieve and maintain an acceptable rate of success? How do we measure outcomes in the criminal justice model for incarceration compared to outcomes for restorative justice programs?

Data driven responses to these questions will prove or disprove the case for expanding restorative justice programs and for institutionalizing them in annual government budgets. But they might also have another benefit. If forward-thinking members of the legislative and executive branches come to appreciate that the supports needed to make restorative justice work on an individual basis in specific communities identify the same negatives that must be worked around, they might consider whether the introduction of those same supports on a community wide basis could effectively eliminate a significant amount of criminal activity before it occurs and provide a stronger community for everyone.
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Samuel C. Damren is a retired Detroit lawyer and author of “What Justice Looks Like.”