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| Natalie Gordon |
In October, President Donald Trump arranged a meeting at the White House for the family of Harry Dunn, a British teenager killed in a car crash in England, with the American woman who was driving the car that killed him, Anne Sacoolas. But the Dunns attended the meeting not knowing that Sacoolas had been invited.
They had come to the White House to convince Trump to waive diplomatic immunity for Sacoolas, who had initially cooperated with the police investigation in England but then fled to the U.S. So, when the Dunn family arrived at the White House and discovered that Sacoolas was there, and that Trump thought they should speak with her, they were shocked and refused to meet with her.
This was not restorative justice for two reasons: first, which is likely the more obvious one, because the Dunn family refused to meet with Sacoolas, and second, because they were invited to the White House under false pretenses. The Dunns were never asked if they wanted to have a conversation with Sacoolas, and, in turn, had no opportunity to prepare for such a heavy, intense conversation. These two factors — the voluntary nature of restorative justice, and the importance of preparation for all involved, ensuring accountability for the party who caused the harm — are critical ingredients of restorative justice.
The concept of restorative justice was also recently invoked in reference to the Jeffrey Epstein case. Epstein's death meant that there would be no trial, and it seemed as if no form of justice would be possible. But then U.S. District Judge Richard Berman provided Epstein's victims with a platform to speak. At the hearing where Judge Berman was to throw out the indictment against Epstein, the accusers shared impact statements — an unusual move, and one which has been highly criticized since.
Judge Berman's inclusion of victim impact statements demonstrated a clash between, on the one hand, progressive efforts to involve victims in the criminal justice system and aid their healing, and on the other hand, the system's goals of determining guilt and punishing offenders for wrongdoing. Was this process healing for the victims? Was it, as many have called it, an example of restorative justice?
The truth is that while having victims share their stories can be helpful, this alone is not enough to engender healing, nor is it an example of restorative justice. It was a one-sided conversation, since the person who could take responsibility for the harm was absent. It may have been a step in the right direction, but it was not nearly sufficient.
Lastly, there is the Amber Guyger case. In 2018, Guyger entered the apartment of Botham Jean and, thinking she had entered her own apartment and encountered an intruder, fatally shot Jean. She was ultimately convicted of murder. At the sentencing hearing, Botham's brother, Brandt, told Guyger that if she truly was sorry, he forgave her. He told her he loved her just like anyone else and stepped off the witness stand to give her a hug. Then, after the jury left the room, the judge got up and gave Guyger a hug, too.
Much of the controversy surrounding what happened at the sentencing hearing stems from whether the judge can still appear impartial after hugging Guyger, and the suggestion that this action shines light on racially disparate treatment of defendants in court. What is less contentious, however, is that the incident demonstrates the need of those who have been harmed to forgive and the need of those who have harmed to be forgiven.
This was not a restorative justice conference in the traditional sense, but it embodied restorative principles, such as forgiveness, remorse and apologies, that are critical to the process of healing. The Guyger case exemplifies the need for an appropriate space for restorative justice practices to be implemented. Hopefully, someday, more cases will encompass restorative justice components — and will do so in appropriate settings, where concerns surrounding judicial impartiality and racially disparate treatment of offenders does not obscure the effectiveness of restorative justice.
So let's talk about restorative justice and why it is so effective. The premise behind restorative justice is to shift attention from determining what law was broken, who we should punish for breaking that law and how we should punish them, to determining what harm has been done, and to whom and how we can best address the concerns of those affected by the harm. It expands the circle of stakeholders from the typical offender-government duo to include victims and community members. And it focuses on repairing the harm that was caused and restoring the relationships damaged by that wrongdoing — namely, the relationship between the wrongdoer and the victim or victim's family, and the relationship between the wrongdoer and the community.
At restorative justice conferences — which may be called peacemaking circles, victim-offender dialogues, victim-offender conferences or family group circles — the parties involved have an opportunity to share how what happened affected them. It is a forum for storytelling. For less serious crimes, such as petty crimes and misdemeanors (the rare cases for which restorative justice can be used in lieu of the court process), there will be a discussion about what the person who caused the harm can do to repair that harm — in other words, how they can make amends.
For example, at a restorative justice conference for a person who vandalized a building, there may be no direct victims, but the building owner or tenants might be present as secondary victims and/or community members. The perpetrator might agree to volunteer to make art at a youth community center. Sometimes, as in this example, the agreement for how to make amends will be related to the crime in some way.
The important thing about restorative justice is that everything about the process — from the conference itself to the choice of how the person who caused the harm will make amends — is completely voluntary. Additionally, for a conference to happen in the first place, the person who caused the harm must show a willingness to be held accountable — something that was not assured in the Harry Dunn case, and was not possible in the Jeffrey Epstein case.
It is because of each of these facets of restorative justice that all of those affected — those who have caused harm, those who have been harmed and community members — have their needs addressed.
As it stands, the criminal justice system largely ignores the needs of victims and community members, as they are not even a part of the process. Furthermore, the criminal justice system does not focus on offenders understanding the consequences of their actions, nor does it provide them an opportunity to empathize with their victims. It focuses on holding offenders accountable by punishing them for their wrongdoing. But accountability does not come from punishment; it comes from an individual taking responsibility for their actions — from facing what has been done, making amends and empathizing with those whom they have harmed.
Some have questioned whether restorative justice is letting offenders off easy. But restorative justice is not meant to be a replacement for the current criminal justice system. It is only in low-level offenses that restorative justice can be used instead of the court process.
In cases involving more serious offenses, such as murder, a conference will be held inside the prison where the offender is being held. There are often months of preconferences with the parties separately, preparing for the group conference that will eventually happen. The person who has been convicted will not necessarily be let off sooner for participating in the group conference. They participate because they want to take responsibility for their actions. It might even be said that they want to help the healing process for those whom they have harmed.
The reality is that restorative justice does far more to hold people who cause harm accountable than the current criminal justice system does. Think about it: Up to 97% of cases in our system are resolved through plea agreements. And this process happens very quickly — one scholar has said it takes less time to plead guilty than it takes to get a hamburger from a McDonalds drive-through window.
The goal of plea bargaining is to convince the defendant to plead guilty in exchange for lesser charges or a more lenient sentence. The plea negotiation does not involve the defendant. It is a conversation that occurs between the prosecutor and the defense attorney. And in the rare cases that make it to trial, most defense attorneys do not have their clients take the stand. The trial is all about the attorneys, the witnesses, the jury and the judge. The defendant usually sits there in silence.
In both situations — plea bargains and trials — the voice of the accused usually goes unheard. In restorative justice circles, people who have caused harm are provided an opportunity to speak. They are involved in the process of repairing the harm they caused and, in doing so, are more likely to feel accountable for their actions.
Restorative justice can be used in all types of cases: from petty crimes and misdemeanors to sex offenses, domestic violence and murder. In cases where the likelihood of being retraumatized is an issue, surrogate victims can be used. For example, a woman who has been sexually assaulted may be at a high risk of retraumatization or revictimization and, as such, better suited for a restorative justice conference in which the person she meets with is not the one who assaulted her but someone who has previously caused that harm to someone else. Modifications such as this make it possible for anyone who has been involved as a party in a crime to reap the benefits of restorative justice.
In addition to misconceptions surrounding what qualifies as an example of restorative justice mentioned earlier, there is also some confusion surrounding the core tenets of restorative justice. The goals of restorative justice do not include forgiveness, apologies or reducing recidivism. The goal is to address the needs of those involved where a harm has occurred. Yet, by doing so, restorative justice often does result in apologies and forgiveness. And studies show restorative justice does reduce rates of reoffending. Restorative justice succeeds because by focusing on needs, the beneficial byproducts are endless.
Natalie Gordon is a jury consultant at DOAR Inc., and a Ph.D. student at John Jay College of Criminal Justice, where her research focuses on jury decision-making.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.