Pathways to restorative justice

By Hon. Darlene O’Brien
Washtenaw County Trial Court

“In the middle of every difficulty lies opportunity.” — Albert Einstein

Restorative justice is a concept difficult to describe succinctly. It has many facets and generally strives to bring a deeper level of accountability to offenders, facilitate healing of victims and restore well-being in the community. Significant restorative justice efforts are occurring in our district courts involving veterans, drug treatment, mental health, street outreach and human trafficking. The reported results are generally positive and many participants in these programs report affirmative and often life-changing benefits. Can restorative justice practices also benefit those involved in some criminal felony cases that proceed to circuit court?

Voluntary victim-offender conferences are one form of restorative justice that could complement our traditional criminal justice process once sentencing has occurred and appeals have concluded. Before sentencing, defendants would need to consider their rights and voluntarily waive constitutional protections before engaging in a victim-offender meeting, assuming that the victim is willing to participate and the case is appropriate. One format that has been used for these meetings is a peacemaking circle employing principles and practices derived from native communities to bring affected persons together to help repair the harm that has been done while restoring balance and harmony to the individuals involved as well as the community. Involved individuals come together, sit in a circle and speak in turn with the aid of someone trained in the circle process. Difficult questions are addressed: who was hurt and in what ways, how has the offender and his/her family been affected, is there anything that can be done to keep this from happening again, and what can be done to try to make things better.

The broad range of peacemaking circles employed in criminal justice systems is the focus of the book “Peacemaking Circles, From Crime to Community,” by co-authors Kay Pranis, who planned restorative practices for the Minnesota Department of Corrections; Barry Stuart, a former judge; and Mark Wedge, a member of the Carcross/Tagish First Nation in Yukon experienced in circle processes. The book was published in 2003 through Living Justice Press. Sentencing circles have been successfully implemented in some jurisdictions before sentencing as well as after, both with or without any victim participating. In tribal courts, a pre-sentencing circle can make recommendations on what the community believes would be an appropriate resolution of a case. Or a separate circle without the offender may be convened specifically to support a victim dealing with the trauma of the crime either before or after sentencing. Circles can also be arranged to support the defendant and his/her family prior to incarceration.

One illuminating example from the book reveals how a peacemaking circle facilitated an offender’s accountability. The defendant described his experience of agreeing “to be accountable to himself and his community through a Circle process” even though he was reluctant because the process was hard: “. . . acknowledging the harm, what you’ve done and the need to talk about it, who I’ve harmed, what ripple effect it had. To be able to be in conversation about that stuff, then to understand and be aware; you yourself hold yourself accountable.” He went on to explain that when he got to jail, “I was the only person there who knew why I was there. I went to court. I didn’t talk; the lawyers talked, the judge sentenced me, and I went to jail. And everybody in jail was either innocent or ‘wrong place, wrong time.’ Nobody really owned what they did. I know what I did. I knew why I was there.” That level of self-realization could help a person avoid making the same mistakes in the future; it was instrumental in that former gang member becoming a street outreach worker.

Circles have also been convened to aid those otherwise involved in the criminal justice system. Many who regularly work with the courts recognize that the subject matter at times is grim. It can take a toll on anyone required to view photographs or videos or hear testimony of horrific crimes, particularly those who never chose to be involved in the criminal justice process such as jurors who literally are plucked out of their daily lives and obliged to serve in child-sexual assault or murder trials. Once the verdict is rendered, jurors are paid a negligible sum and “discharged” back to their ordinary routine. Pranis, Stuart and Wedge offered another example of a justice circle specifically convened to include the jurors, detectives and other court professionals involved in a particular case with a goal of healing and decompressing from the litigation process itself.

Peacemaking circles can reflect the needs of the community and be designed to address the individual goals of each specific community. How they can be integrated into our conventional criminal justice system will require study and conversation. Although the study of restorative practices requires a commitment of time and energy, it has potential to complement our traditional system of justice, provide opportunities to build community and restore the public’s confidence in our system of justice.

—————

Darlene A O’Brien is a Washtenaw County Trial Court judge. Following graduation from Notre Dame Law School and a federal judicial clerkship, she began private practice in Michigan in 1981.