Three boys ride bikes downtown looking for cellphones: an iCrime in the making. One distracts a woman, the second snatches her phone, they ride off. The police nab them.
What now? This is America. The boys are black. African Americans are 13 per cent of the total US population but 40 per cent of the incarcerated. A wealthy white boy can survive wild escapades and cocaine use and go on to be President. But a poor black boy who steals phones is likely headed for a lifetime in and out of prison, for which he loses his right to vote, his ability to get a college loan, his chances of employment and so on all the way to an old age without having qualified for social security. More African American men are in the grip of the criminal justice system today – with the loss of citizen rights it entails – than were enslaved on the eve of the Civil War.
But these boys get surprised. Instead of being sent to a detention hearing before a judge, they are asked if they would like to meet with the woman they stole the phone from, in a “community conference”, along with their family members and others who will help them devise a plan to make restoration. If they complete the plan, they will not be charged with the crime, and nothing will go on their records.
They learn that this is called restorative justice. It is a system approved by the Oakland, California police and District Attorney, who has signed an agreement that if the process breaks down and the young person after all goes to court, nothing said in the community conference will be admissible as evidence against them. The conferences are run by Community Works, a nonprofit that depends on grants and donations.
The three families recognise better than their kids do what a chance is being offered. Hardworking, low-income people, they are angry at their boys, desperate to protect them from a life of crime, drugs and prison. Of course, they agree.
But it’s not so easy. The woman has misidentified the distractor as the snatcher. At first he feels victimised by this: “It wasn't me! I need restorative justice too!” The second one says, “I didn't touch the phone, so I wasn't involved!” This attitude is what’s expected in the criminal justice system: never say you’re sorry, never own up. But a restorative process needs to start with some level of admission by the responsible people that they did something. It’s the one who did snatch the phone who feels guilty and remorseful: “I want to meet her and say I'm sorry.”
Now there’s a new snag: despite being a highly independent and self-reliant person, the woman finds herself in a state of shock and anxiety. She doesn't feel able to participate. In this kind of process the needs of the person who has been harmed are central. No pressure is put on her to meet the boys.
Still, community conferences go best when those who have done the harm can hear in full, face-to-face, from the person they harmed. So the coordinators find two people who were victims of similar crimes, who agree to join the conference as surrogates, to tell how it felt, what they suffered, psychologically and materially, in detail. For the kids to hear this, with their family members present, can be as sobering and even agonising as going to court.
One person in this circle, in a city that has suffered a long history of bad relations between people and police, is a police officer. He explains what the law will do to the kids if they don’t work out a restorative plan; but he also tells them why he got into enforcement in the first place, out of a desire to help the community. They start to see him as a person too, just as they are seeing, by proxy, the woman whose phone they snatched as a person.
The mothers are as scared and mystified by their boys’ behaviour as the victim; there are tears and anger. One of the community members in the circle is a man who did time in prison for a crime that he initially denied responsibility for. He understands. Now he is out and has kids of his own. He tells the boys they are lucky to have parents at all – he didn't.
It’s a complex process, as they don’t just hear anger and disappointment from the circle, but also hope and love and promises of practical and emotional support for putting things right and helping them walk a different path. The adults in the circle listen to the kids, perhaps for the first time, as if they were people worth listening to.
In this conference there are three “responsible youth” (not labelled as “offenders” here), three mothers, two coordinators, two “surrogate victims” (the coordinators haven’t agreed on a better term yet), the police officer and two community members. They sit in a circle, not around a table but in full bodily view of each other. On the floor the coordinators have laid a colourful cloth on which they put objects of symbolic meaning, to encourage the understanding that this is sacred space. Snacks are at hand.
The process follows a tight script, designed to take no more than two hours out of busy people’s lives. The coordinators have talked fully with everyone individually beforehand, so that participants will trust them and the process. They have met the kids three times, to help prepare them to face what they did and be prepared to discuss why they did it. They need to see that the process can help them too.
Critics deride restorative justice as the soft option, letting criminals off the hook, but in fact it can’t work without perpetrators acknowledging and taking responsibility for what they have done. “This is not a mediation,” explains Denise Curtis, Program Manager for the Restorative Community Conferencing program in Alameda County, “which usually operates on the assumption that no one is wrong or right. Here the message is ‘You have to make things right.’”
The woman whose phone was snatched did say what outcomes she wanted, which included making donations to a charity. The boys agree to do it, each finding ways to earn the money. They agree to do better at school. Their plans are accepted as viable by the circle.
The Community Works coordinator meets them once or twice a week for the next few weeks and then checks in with them by phone, to help them pursue and complete their plans. If all goes well, three more young black men are diverted from the impoverished and disenfranchised futures that harsh criminal penalties, enacted by administrations ever since Ronald Reagan’s War on Drugs, have had in mind for them.
This is called a diversion programme, meaning that the responsible youth are diverted from entering the criminal justice system. In Alameda County, which includes the cities of Oakland and Berkeley, about 95 young people a year, especially youth of colour since they are disproportionately targeted by the legal system, are being offered this chance in this programme.
Across town at the juvenile detention centre, some young people who didn’t have that chance and have been convicted are now meeting in circles to help them take responsibility for their crimes and build their futures; after they are released each will meet with a support circle of family and community members to help them pursue their lives in the community.
And in a growing number of schools in the area conventional punitive discipline and suspensions are being replaced with restorative systems. Kids who were raised in a culture that taught that if anyone laid a hand on them they should hit back, are learning that they have alternatives, all the way to calling a formal circle with the support of the school’s restorative justice coordinator or volunteer. Circle process is time-consuming, and it needs the full support of the school principal and teachers.
It’s a cultural change that takes time to build. But, according to recent data, it has led to dramatic reductions in fights, aggressive behaviours and suspensions where it has been implemented. The goal is to break “the school to prison pipeline”. Oakland’s success has not gone unnoticed, both the New York Times and the Christian Science Monitor have profiled the innovative restorative program at Oakland’s Ralph J. Bunche Academy, that halved school suspensions in just one year. Schools in other parts of the country are taking notice, too.
But while most people will support the idea of giving kids a second chance, what about adults? There is a widespread view in America that violent men are beyond help. Incarceration is not only what they deserve but the best way to protect society.
There are as yet very few cases where adults are offered community conferencing alternatives to prison. But in local state prisons and county jails, programmes assist men convicted of serious crimes, including rape and murder, to understand why they did what they did, how to live differently and how to restore if their victims or their families want to meet with them.
For over a year I have been a volunteer with one such programme, the Victim Offender Education Group (VOEG) run by the Insight Prison Project at San Quentin prison. At a recent induction, men who have graduated from the programmes and been trained to facilitate them explained to those about to start what they could expect.
“It’s deep. Be prepared to cry. You’ll get connected to your crime and to the group. You’ll get to know why you did what you did.”
“You get to the point that you want to look at yourself, at the man in the mirror. If you have the courage, VOEG will give you the tools, the framework. The healing begins when you open up.”
“I suppressed a whole lot of stuff, but the group, with the confidentiality and the chemistry, enabled me to open up. I needed to connect the dots from when I was six years old, my mom and dad fighting, the whippings and beatings. It was liberating. I put aside the facade I had built.”
“One guy who explained restorative justice to me said we had been raised to shed blood before we would shed tears.”
For this observer, the most striking comment from the men entering the programme was: “What I want to know is, can you teach me how to forgive myself?”
This is group work, where 10-12 men and their facilitators build a circle in which they can trust each other, say things they have never told, be vulnerable in ways they never could before. In the separate but similar Manalive groups, men study how our culture’s Male Role Belief System sold them a bill of useless goods about male dominance, and they learn how to “intimate” instead of “violate”. Now these programmes are moving into women’s prisons as well.
Victim Offender Dialogues are another initiative, one-on-one encounters between harmer and harmed, with a facilitator. A fellow volunteer has just heard that she has gained permission to meet with the man who killed her daughter – the man himself and the prison warden have agreed to it. Now she and the man she hopes to meet will enter a process of meetings with their facilitator in preparation. Typically, the greater the harm done, the more work will be done individually with the responsible person and the victim before they meet.
While I know of no case of diversion in the US for the crime of murder, a new practice is emerging for injecting restorative consciousness into the trial process for serious crimes at the plea negotiating stage. The New York Times recently profiled a case in which the parents of a teenager killed by her boyfriend joined with the boyfriend’s parents to request a restorative approach. After a thorough restorative circle process during plea negotiation, in the course of which the parents of the murdered girl forgave her killer, the young man’s sentence was somewhat reduced. Both he and the mother of the young woman he killed share a hope that one day they may go to together to high schools to tell what they have learned about violence in teen relationships.
Such initiatives are not unanimously approved. Hundreds of commentators on the New York Times piece argued that such an approach was too lenient and accused restorative justice facilitator Sujatha Baliga of putting the needs of forgiveness above public safety, a charge roundly refuted by Baliga when I interviewed her for an article about the case back in January. “Forgiveness is not a pardon,” she told me, and “the kind of accountability that flows from a restorative process serves public safety better than what we are currently doing.” She spoke of the restorative process as a “moral wake-up”, “in-person contact with and accountability to the person you harmed [giving you] 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.”
Certainly restorative justice is a huge paradigm shift. Instead of punishment by the state, it fosters justice and healing within the community. Where a punitive system asks, “What rules or laws were broken, who did it, and what is the apt punishment?” a restorative system asks, “Who was harmed, what are the needs and responsibilities of all affected, and how do all affected parties together address needs and repair harm?”
Much restorative justice work is focused on the people who did the harm. That violent and abusive people can understand and relearn their own responses to life’s hardships and challenges is critical to the paradigm shift: if it were not possible, then prison might be the only option, ineffective as it is. But it’s not restorative justice if it isn’t equally or more focused on those who have been harmed. It asks, what do they need?
It’s easier to grasp at the lower end of the harm scale: homeowners robbed by a teenage burglar may want to be compensated, but even more they may want to know why their home was singled out, why did the kid do it, what is society doing to help kids like that get a sense of how damaging their thieving is, how violated their victims feel. They may even surprise themselves by wanting to help. True cases: a maths teacher whose car was robbed ends up giving free tutoring to the teen who did it, because of the connection made in the circle; homeowners ask the teen who burgled their homes to spend the money he owes them on parenting classes for him and his pregnant girlfriend, to break the generational cycle of abuse. Instead of being isolated in fear, the victims are becoming engaged in community solutions to the extent that they want to be.
But how can it work in more serious crimes from muggings to rape and murder? Many victims and survivors just want the perpetrator locked up, even executed. But the recidivism rates are high, prison is crime school and the epidemic of rapes and murders continues. High recidivism rates don’t give victims much confidence that society is preventing violence. And the grievously harmed may even more desperately need to know, “Why me?” They may have questions only the responsible person can answer.
If the encounter between the doer and the done-to can happen even in the worst cases, and the latter can get across their suffering and their questions, and the responsible person who did the harm can truly hear what they did, then they may come to want their own rehabilitation. Of course it may be a long process. That is where “personal work” programmes come in – help and support for addictions, mental health, education and for understanding the psychological and cultural roots of one’s own violence. The programmes themselves, like the VOEG programme I volunteer with at San Quentin, are arguably not the core of restorative justice (they typically take place long after the event and once punitive justice has already been applied) but the paradigm shift can’t happen successfully without them. Without the experience that violent people can change, can understand their own violent patterns, can heal from the harms they suffered and become trustworthy partners, parents and community members, it is hard for their victims to regain trust in humanity or for the community and the state to start trusting restorative instead of punitive approaches.
Martin Luther King said, “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important,” and that was the basic achievement of the Civil Rights legislation of the 1960s. Those victories were legally protective, but not restorative: they looked forward, a great achievement, but it was beyond their power to address the harms of the past or the underlying racism that continues to blight America. A rights agenda alone is not adequate to address these problems. We need a relationship agenda, one that recognises the interconnection of these issues and seeks to address the plight of victims, communities and, yes, that of those who have done wrong and want to put it right.
It is evident to everyone – of whatever political stripe – that America’s criminal justice system is a failure. It fails to deliver justice, to reduce crime or to offer alternatives to criminals. Those of us involved in restorative justice are trying to build a system that works, for public safety, victim support and rehabilitation.
The various practices that can combine to comprise a full restorative system are being created on the ground, in several places across America and in other countries. There is still resistance and confusion – about what it is, what role religion has to play in it, and how to reconcile individual and social accountability for crime – but it is growing.
Every time I sit with the men in San Quentin there is some moment when I can’t help comparing their lot to that of other criminals – those who operate in Washington or Wall Street. Most of the guys in my group had learned to hit back when they were dissed or attacked. Some of them ran highly organised businesses selling drugs, alcohol, sex or stolen goods. But they didn’t gamble with billions and put millions out of work, start wars or embezzle millions of taxpayers’ dollars. Some of them killed people, but most of those responsible for the 4,609 annual workplace deaths in America remain unpunished still less called to a community circle to make amends. Is this justice?
It seems to me that if restorative justice works for the men at San Quentin then maybe it could work for these other criminals too. What a day it would be if those responsible for causing so much hardship and want in America had to sit down with those who have suffered at their hands, own up to their crimes, seek forgiveness and pledge themselves to a new way of life.
