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Radical Compassion: Restorative Justice Program Meets Needs of Both Victims and Perpetrators

A new program allows victims' forgiveness to play a role in prosecution.
 
 
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A storm of comments swirled around a story about teen murderin the New York Timeslast weekend. The parents of a young woman named Ann forgave her boyfriend, Conor, for murdering her. Andy and Kate Grosmaire had loved Conor before he killed Ann, their youngest daughter. But they said they did not so much forgive him for his sake as for their own, to free themselves from being imprisoned in hate and anger, and to follow the teachings of Christ (they are committed Catholics). 

What shocked many readers, though, was that they sought a "restorative justice” process, in which Conor, the two sets of parents and other involved individuals met in a circle with the prosecutor and bared their souls to one another – and thereby succeeded in persuading the prosecutor to give Conor a lower sentence than he would otherwise have received.

Conor is white, some readers commented, believing that could never have happened to a person of color. It’s unfair and arbitrary, others said: no one’s sentence should be determined by how forgiving or angry their victims’ families are. Forgiveness is a private spiritual matter. Sentencing should to be unemotional and consistent.

I went to visit Sujatha Baliga, the restorative justice facilitator in the case, in her office at the National Council on Crime and Delinquency in Oakland, California. Baliga has a vibrant presence and is quick to laugh (and to cry, when some bad news arrived during our interview about a former client). While she speaks colorfully off the record, she skillfully couches what can sound like radical ideas in the language of public policy and the law. (Sujatha Baliga wrote her own description of the McBride-Grosmaire case a year ago in the restorative justice issue of Tikkun magazine. The two families spoke about the case on The Today Show and Baliga was on NPR's Talk of the Nation.)

David Belden:Does restorative justice promote forgiveness over public safety?

Sujatha Baliga: Restorative justice never requires forgiveness as a prerequisite for participation or as an outcome. We don’t want to put pressure on victims to forgive. But I can’t think of a better cauldron for cooking up some forgiveness than a restorative process, because it makes an opportunity for some of the things that people need for a feeling of forgiveness, a letting go of anger. 

It was a beautiful thing to see how forgiveness impacted the Grosmaires and Conor in this case, and I'm so glad I had the sacred opportunity to witness it first-hand. However, even without forgiveness this would have been a doable case – the Grosmaires had no interest in a trial, had questions only Conor could answer, and wanted a say in what happened. A restorative process could have met those needs with or without forgiveness. 

In my experience a quarter of restorative processes result in forgiveness, a quarter are entirely transactional, and 50 percent are somewhere in the middle. 

What is forgiveness? For some people it is a spiritual or religious thing, for others it’s simply a complete relinquishment of anger and a right to retribution and revenge. That relinquishment may or may not occur at the end of a restorative process. 

As to public safety, there is no reason to think of that as being at odds with forgiveness. As Andy Grosmaire said on the Today Show, forgiveness is not a pardon. In fact, the kind of accountability that flows from a restorative process serves public safety better than what we are currently doing today.

We know that recidivism, or re-offense, rates are lower with restorative processes. When you have that moral wakeup, that in-person contact with and accountability to the person you harmed, you have the opportunity for a deeper understanding of the impact of your crime and a deeper opportunity for that conviction that I will never do this again.

DB: As some commenters in the Times wrote, in domestic violence we see time and again that men come to an understanding, with remorse and horror, of what they have done… and then they just do it again. So what is there about this moral understanding that actually helps people to change their lives?

SB: There is a significant difference between the cycle of violence that occurs privately, within a couple, and bringing that violence into a community-based restorative process. There you have a community container for holding the person responsible, which is a very different thing. For example there is a program in Nogales, Arizona, that has had remarkable success in doing restorative justice with domestic violence cases. It’s different because there’s this community and extended family involvement in holding the person to account directly for their behavior.

DB:So is it about public shame for the offender? 

SB: There’s a lot of writing and thinking in restorative justice about the value of shame. For me, I’m not a fan of the word “shame.” I think it’s not about this feeling of personal humiliation – I think shame can be very narcissistic. I’m more interested in words like “regret,” and “remorse,” and a true understanding of the impact of one’s behavior. Shame is like “shame on me, I feel so ashamed.” It’s not as effective a place to act out of an interest in the other person’s wellbeing as is regret, remorse and a resolve not to act like this again.

DB: So let’s imagine that Conor, or anyone in a domestic violence cycle, has gone through a restorative justice process and has reached this remorse and resolve: do they then need to go into some major re-education programs, comparable to an addict dealing with addiction?

SB: Absolutely. Restorative justice is not an end in itself. We come up with a plan to repair the harm. The way we do it in the programI helped develop that is now operating with Community Works here in Oakland, is that the plan to repair the harm has four parts. The program is primarily working with young people. The plan is to repair the harm to your victim, to your parents or caregivers, to your community and to yourself. That plan to repair the harm to yourself is really about transforming yourself, changing your patterns of behavior. So if you have a problem with teen dating violence you need a teen dating violence program as a part of your plan. 

So the restorative process itself is wonderful in doing that first shift, but where there are past traumas, habitual patterns, or repetitive faulty thinking that have gotten you in trouble again and again and again, you really need help with that. This isn’t in lieu of traditional programs. If the kid has an addiction he needs addiction counseling. Sitting in a circle with a person who you harmed in part as a result of your addiction isn’t going to make your addiction go away. You need the addiction counseling.

DB: A number of the commenters really don’t believe that violent men can change. 

SB: So we know that that’s not true. Resolve to Stop the Violence Project has shown after 16 weeks of participation an 84% reduction in violent re-offending. The facts are the facts.

DB: What about the comment that Conor is a white guy and this will never be rolled out for young black and Latino men?

SB: Again, what a wonderful opportunity this is for raising awareness about all the restorative justice work that is happening. Conor’s case is actually pretty rare on a number of fronts. In Oakland, Baltimore and New York City restorative justice is happening almost entirely with youth of color, for serious crimes, and it is incredibly effective in all three places. 

DB: And how widespread is this across the US?

SB: Not so much in this posture, though there are many other restorative justice programs in schools, prisons and communities across this country. Baltimore and Oakland are the two places where this diversion work is happening in a systemic way that I am aware of. The Office for Victims of Crime recently gave the National Council on Crime and Delinquency a grant to survey the nation, for us to determine where this is happening. So that’s what we’re doing now at NCCD, finding out where this happening and how we can support one another, and how we can be supported by the federal government to do this better.

DB: Going back to domestic violence cases, here’s one of the comments in the Times: “Allowing 'forgiveness' to determine the course of the criminal justice system is certain to return us to a time when those who commit domestic violence enjoy a preferential treatment – because victims who survive will be under considerable social pressure to 'forgive' and because perpetrators of domestic violence tend to come off as more sympathetic than other kinds of violent criminals.”

SB: So I think again this is an unfortunate conflating of forgiveness and restorative justice. If we were touting that forgiveness is the approach to domestic violence, yeah, that would be really problematic. If we are saying that restorative justice may be an incredibly effective model, even more effective than our present approach, for reducing re-offense rates in relationships in which there is violence, that is really different. We’re not talking about people being let off the hook, but about people being held meaningfully accountable for their behavior and to looking at the patterns that give rise to the offending behavior, and I think restorative justice does a much better job of that than the traditional criminal justice system.

DB: Here’s another comment: “Just as we do not allow families to take the punishment of offenders in their own hands by lynching the perpetrators, we should not let the families have any say whatsoever in the determination of punishment by the legal authorities. It should be emotionless determination of fact with predictable consequences.”

SB: This idea, that in our criminal justice system today we have an emotionless determination of fact with predictable consequences is a grave fallacy, particularly in capital cases and first-degree homicide cases. One of the greatest determinants of whether someone will or will not be executed today is the race of the victim. This is clearly not dispassionate and emotionless! So we have this incredible disparity in outcomes. 

Secondly, people are also concerned that outcomes in sentencing should be uniform, and I take some issue with that. That’s something we are very fixated on here in the United States, I think in part reasonably so because that lack of uniformity has often played itself out in incredibly racist ways. But most crime is intraracial, and where the determinants of outcomes are the very communities that are most impacted by the harm and by over-incarceration, where people of color in particular are making decisions about their own with their own, I don’t know that we are going to see the same kinds of disparities. A large part of the problem today is that we have jurors being selectively removed on the basis of their race. What does it mean to put the decision-making back in the hands of the community? I don’t think we’re going to see that same kind of [racist] disparity in outcomes.

Thirdly, I would question whether or not some level of disparity is, sort of, natural. Every case is different. There are differing levels of culpability based on the very specific facts that happen in each case. Instead of lumping all intentional homicides into one category, ask how intentional was it? What were all the little factors that gave rise to this? What does that inquiry tell us about the person who harmed, so that we could fashion an outcome that is tailored to the specificities of this offense in a way that helps reduce this specific person from re-offending? When we are thinking about this as a process of reparation and healing and preventing re-offense, I do think that things are very different person to person to person. This one-size-fits-all sentencing has not done anything to reduce re-offending. Rather this more tailored approach to addressing each person who does harm seems like a much more effective approach and maybe something we want to consider instead of being so married to this concept of uniformity and consistency in sentencing. 

DB:So who should decide the sentence? Is it the state’s role or the community’s?

SB: In a restorative process it would be everyone’s role together, depending on the crime. Sometimes the state should be involved. It needs to be involved in these most serious crimes. It will be a long time coming and require a massive cultural shift before we are handling first-degree homicide in the community without state involvement. But there are many, many crimes in which the state doesn’t need to be at the table today. But generally, restorative justice is collective, consensus-based decision-making with all stakeholders, so all of them should collectively decide. 

DB: And what happens in a restorative justice process if the victims have no forgiveness and want an even heavier punishment than the state asks for?

SB: Whatever the victims want, the penalty will be at or below the statutory maximum for that crime, which is what the offender was going to get anyway, without a restorative justice process.

Further readings:

Howard Zehr’s The Little Book of Restorative Justice and Changing Lenses: A New Focus for Crime and Justice.

Kay Pranis: Peacemaking Circles: From Crime to Community and The Little Book of Circle Processes.

A report about a school in West Oakland that was transformed by the introduction of restorative practices. 

guide for schools looking to implement restorative justice. 

 

David Belden works with Bay Area Nonviolent Communication and volunteers as a restorative justice co-facilitator in San Quentin prison with the Insight Prison Project.

 
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