Right on Crime
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Derek M. Cohen | December 16, 2013
In the adversarial criminal justice process today, the state has become central. Crimes are considered to be actions that injure the state, regardless of any damage suffered by victims. As such, the state owns the legal conflict and is responsible for processing and disposing of all legal complaints. Victims have been relegated to a minor role in the criminal justice process.
Restorative justice programs provide a compelling alternative to this framework. Unlike the traditional state-centric justice model, the restorative justice model seeks to reconcile the victim and offender and provide reparations for the harm done in the commission of a crime. By establishing the victim as the center of the process, these initiatives offer promise in providing greater victim satisfaction, increased public safety, and better offender outcomes— often at less cost than other criminal sanctions. This policy perspective delves into the history of restorative justice practices, discusses the efficacy of contemporary programs, and suggests a model program for implementation in Texas.
Restorative justice practices have been slow in gathering momentum. Few lawmakers would accept the political risk of championing a program that seemed to inflict little punishment (under the “state as victim” definition) to the offender. However, in 1994 the American Bar Association formally endorsed Victim/Offender Mediation (VOM) as an adjunct to the existing court system.1 Similar to its progenitor VORP, the VOM model emphasized voluntary participation by both parties and the absence of additional consequences for the offender beyond those enshrined in the mediated agreement, which is then ratified by the court.2 The VOM model is representative of most restorative justice initiatives currently in place around the country.
What is Restorative Justice?
In antiquity, English law held that most crimi- nal acts were those in which one party caused a recognized injury to another. The other, having suffered harm due to the actions (or inactions) of the first party, was empowered to bring a complaint before a local magistrate for judgment. The magistrate functioned more as a mediator and ex officio participant, with powers of enforcement if the agreed-upon terms were not met in contrast to the detached arbiter of today’s criminal courts.
This legal tradition was fundamentally altered in 11th century under the rule of William the Conqueror. Whereas minor crimes, the historical analogue of modern-day torts, were viewed as isolated conflicts between two individuals, major crimes were seen as crimes “against the king’s peace.” During the reign of William’s grandson, Henry I, the domain of activity that constituted major crimes gradually subsumed minor criminal actions. By the dawn of the 12th century, nearly all violations of codified crimes were considered actions contrary to the greater peace.
As the heirs to England’s common law, William’s tradition is still seen in criminal law across the United States. Criminal behavior, even that which harms only the transgressor, is treated as a crime against the State and not the individual.3
The shift towards state involvement was not without its merits. Including the state as the judge allowed the law to move towards a more uniform standard where accused defendants could expect equal treatment. The elimination of vendettas as means for justice, the uniform standards on use of coercive powers via procedural law, and the professionalization of legal actors are but a few examples of how this legal orientation lessened the effect of subjective whims in favor of a more objective process.
However, by treating the state as both injured party and judge, the law removed a key figure from the proceedings: the victims themselves. While it is true that victims do have some recourse in the current criminal justice process, that recourse is generally confined only to a handful of mostly unsatisfying procedural outlets. Victims may present an impact statement during the trial, enumerating for the judge the specific damage caused by the criminal act; in Texas, that usually takes the form of a written statement before sentencing or an oral one after sentencing. However, the judge’s discretion in criminal sentencing is often restricted by legal precedent, irrespective of the individual nuances of crime or the perpetrator.
Nor is the system conducive to the victim’s effort at obtaining compensation for his injury. A judge may order restitution in tandem with a legal sanction, but any sentence that limits the earning abilities of the offender (such as incarceration) will severely limit the likelihood of repayment. Numerous fines, fees, and court costs can also make it less likely the victim will promptly receive full recompense. A victim may even seek civil damages after criminal proceedings have concluded in an attempt to receive court-mandated compensation. When taken together, it becomes evident that victims are effectively marginalized in the current process.
Several states have altered the criminal justice process so as to allow greater victim participation in the more mechanical elements of charging and plea negotiation. Minnesota, Oregon, South Dakota, and Washington all mandate that the courts in- form the victim of any plea negotiation and enter the victim’s stance on the matter into the record.4 Arizona law prohibits the acceptance of a plea deal if the prosecutor cannot demonstrate that the victim was duly informed and their input gathered for the court. The statute clearly defines the victim’s role in the criminal justice process and compels the court to consider the victim’s input in a negotiated plea.5 Having a larger stake in the criminal justice system—and, by extension, the outcome— routinely increases a victim’s satisfaction with the process.6
While the public generally accepts philosophical underpinnings of deterrence and retribution, public opinion polling shows parallel support for rehabilitation and restitution.7/8 Having been long-standing components of the criminal justice systems elsewhere in the world, restorative justice functions have gained in popularity amongst both scholars and practitioners in recent decades.9
Under a restorative justice model, the individual crime victim supplants the state as the central entity in the criminal justice process. Punishment of the offender, while still a necessary component, should not preclude the victim’s role in the criminal justice process. This extends beyond remuneration and the return of physical property; it seeks to attain the contrition of the offender and repair the intangible harms suffered by the victim.10
Restorative justice programs not only give deference to the will of the victim but also require accountability from the offender. As the central actor to the process, the victim may dictate much of the outcome of the mediation process, oftentimes including the decision whether or not to initiate discussions. The victim can seek compensation for damage both tangible and intangible or, if feeling charitable or non-punitive, request the offender simply volunteer for their favorite cause. The parameters of the mediation’s agreement are to be determined by the victim and agreed upon by the offender.
In addition, restorative justice requires offender accountability. In order for a case to be successfully cleared, an offender must display sincere contrition for their act and make restitution for their crime to both the victim and the community. Offenders who cling to rationalizations such as reassigning blame, negat- ing the injury done to the victim, or outright denying the act are likely to fail the process and, depending on jurisdiction, be assigned a traditional criminal justice sanction, including imprisonment. Having been confronted with the full effects of their actions, offenders often find this a difficult position to hold.
The restorative justice process commonly starts with a victim-offender conference. After a minor crime, such as a property offense, is committed and the appropriate parties are identified, they are given the opportunity to engage in a victim-offender conference. Participation in such a program usually must be triggered by either prosecutorial or judicial referral, either prior to adjudication as a diversion or after as a condition of a guilty sentence. Thus, involvement in restorative jus- tice programs is contingent on the admission (or less often the finding) of guilt and the willing participation of both sides. A defendant declining to participate at any stage will trigger his return to the traditional justice system.
This conference is attended by the victim or their proxy, the offender, a trained mediator, and oftentimes members of the community.11 The victim begins by sharing the harm suffered, both seen and unseen, due to the criminal act. The offender may choose to engage with the victim to offer repentance, proffer an explanation for some closure, or remain silent. Once the exchange is complete, the mediator facilitates a mutually agreed-upon strategy for the offender to provide restitution.12
Additionally, restorative justice plans often contain a provision for mandatory community service. In a restorative justice model, since the state has been removed from the process as an aggrieved party, accountability to the community must be levied as reparation for the damage to its collective security. Offenders may have to pick up trash along a roadside, perform yard work at a community center, or deliver meals to the elderly; all in addition to their restorative actions with the direct victim of their crime.
The Efficacy of Restorative Justice Programs
Restorative justice programs have the potential to become a valuable component to the criminal justice system, showing great promise even when held against a more exhaustive standard. In addition to measuring offender-oriented outcomes — the benchmark traditional policies rest on — researchers must also account for the effect restorative justices program have on the victim and the community, as well. To this end, an “effective” restorative justice program must meet the twin standards of tempering the risk of future offenses while providing for the restitution and well-being of the victim and the community. Still, in spite of these elevated standards, most of the scholarship surrounding restorative justice programs has identified the practice as successful (with minor qualifications), and trending upward.
One of the first restorative justice programs in North America was the Victim/Offender Reconciliation Program, or VORP implemented in Kitchener, Ontario in the early 1970s.13 Using the discretion afforded the office, a juvenile probation officer mandated that delinquents on his caseload would have to meet their victims in addition to their court-ordered sanctions. The probation officer witnessed greater satisfaction on the part of both the offender and the victim; in 1974, the program was taken agency-wide. The program, however, was cancelled in 2004 after failing to raise the needed funds.
An early indirect test of the restorative justice rationale was an evaluation on concurrent randomly-assigned court-ordered restitution programs in Oklahoma County, OK, Clayton County, GA, Boise, ID, and Washington, DC. Across the four sites, juvenile offenders were randomly assigned to traditional probation or to provide restitution (as determined by a judge) to their victims. At the Clayton County site, youth sentenced to provide restitution shown a 26 percent reduction in arrest frequency compared to no change being observed in the traditional probation group.14 The Washington, DC site observed a 12 percent reduction in arrest frequency, compared to a 7 percent increase in the probation group.15 The Boise site produced what appear to be similar results that due to limited sample size were found not to be statistically significant.16
In Bethlehem, PA, a randomly-assigned police-based intervention has shown positive results. Operating on private funding, the experiment lasted 18 months and sought to compare case outcomes from diverted first-time juvenile misdemeanants to a comparison group of similarly-situated offenders processed through the formal justice system. Surveys given to victims who completed the counseling were 17 percent more likely to be satisfied with the outcome than those who were assigned to court.17 Victims also reported markedly high satisfaction in feeling that the offender was being held accountable (93 percent), and that the process was fair (96 percent). Also, 96 percent reported satisfaction insofar as the offender showed contrition.18
In the early days of their implementation, scholars had reservations about their effectiveness in large part due the lack of quantitative support surrounding the practice at the time.19
One such program evaluated under this early rubric was the Indianapolis Juvenile Restorative Justice Experiment launched in 1997.20 In light of increasing juvenile caseloads, local law-makers sought an alternative model to divert young, first-time, low-level offenders from the criminal justice system. Cases were randomly assigned to a family group conference (or FGC: the restorative justice experimental group) or an existing diversion program.21 In a two-year survival analysis, delinquents assigned FGC were both significantly more likely to complete the diversion program and less likely to reoffend within the follow-up window.22 Without support, this effect was transient: while noticeable differences in the success rate between the two groups were seen between the experimental and control group during the first 3 to 8 months of the experiment, the success rates converged towards the end of the follow-up window.23 A recent study on the individuals involved concluded that, at 10 years post-adjudication, there is no discernible difference between the two groups; that the benefit was that FGC juveniles stayed out of criminal justice system for a longer period than their peers.24 This is likely due to the low “dosage” of treatment that the FCG provides.25 Long-term success (and appreciable cost-savings) are achievable if rehabilitation is provided in tandem with the restorative justice model.26
While the gains of the Indianapolis experiment were confined to short-run effects, meta-analytic research on restorative justice studies have found positive results. Essentially “studies of studies,” meta-analyses aggregate the data produced by multiple quantitative reports, research papers, and peer-reviewed publications to identify shared effects of key variables. In 2005, one such study was conducted on research into restorative justice programs and included measures of satisfaction, compliance, and offender outcome. The results concluded that restorative justice programs in general resulted in lower offender recidivism and greater victim satisfaction, likely attributable to the increase in compliance with orders of restitution.27
Abroad, restorative justice programs have met with similar success, even in traditional adversarial court systems. A systematic review of programs located in the United States, the United Kingdom, Canada, Australia, and New Zealand has concluded that restoration-oriented initiatives reduced repeat offending for certain offense groups, reduced psychological trauma suffered by victims, and offered moderately better compliance rates than fines and restitution. They also could be implemented at a significant cost-savings compared to traditional approaches like incarceration.28/29
Perhaps the most widely-touted model restorative justice program abroad is the Reintegrative Shaming Experiments (RISE) Program of Canberra in the Australian Capital Territory. Since its inception in 1994, the program has randomly assigned incoming adolescent and young adult offenders to the treatment group or to the traditional Australian criminal court. Those in the treatment group were encouraged to confront the most proximate victim of their act. Long-term evaluations show that, in addition to victim satisfaction increasing threefold, violent offenders and drunk drivers in the treatment groups were, respectively, 38 percent and 6 percent less likely to re-offend.30
A more limited review of international programs focusing on psychological outcomes echoes this effect. Themes such as contrition, psychological healing, equitability, accountability, and feelings of safety are seen in evaluations that include participant surveys in seven independent studies.31 The author suggests that this insulation from psychological trauma for both the victim and the offender may also lead to a minor reduction in adolescent suicide.32
Notwithstanding the positive empirical evidence, there are some limitations of this approach, particularly for certain types of offenders. One such issue is that, while generally associated with reductions in recidivism, restorative justice programs fail to address known criminogenic risk factors and therefore prove unsuited for more serious offenders, at least as the sole intervention.33 This parallels Latimer’s concern that many evaluations (and by extension aggregate reviews and meta-analyses) of restorative justice programs review initiatives in which offender participants self-select into the process—that they are the very low-risk people who would desire to atone for their transgressions even in the absence of a mediation program.34 While there is validity to this critique, it does not alter the summary conclusion that, in addition to their potential to save the criminal justice system a significant amount of money, restorative justice programs offer preferable outcomes for all involved compared to that of the traditional criminal justice models.35
There is also apprehension that the due process owed to the offender may be abridged on shaky allegations and the desire to avoid criminal prosecution entirely; that the offender will be coerced into accepting a plea in place of a trial.36 While this potential exists with all diversionary programs and would likely reduce the success rate of the practice, this concern can be mitigated by extending the offender’s right to present counsel prior to the mediation process. It offers no compelling reason to reject the anticipated benefits of restorative justice programs.
Implementing Restorative Justice in Texas
Texas is a prime candidate for the adoption of restorative justice programing. Although Texas law grants wide latitude in the issuance of restitution orders, offenders often fail to comply.37 This is likely attributable to the offender’s preexisting lack of means along with the incapacitating effect of any custodial sentence the offender might receive. Further, the disbursement of monies collected to the victim is often secondary to court costs, fines, and administrative fees.38 At least some of these costs would be avoided if the case is initially referred to a restorative justice program.
Based on the tenets of several successful restorative justice programs and accounting for the elements of the United States Criminal Process, a successful roll-out in Texas should:
Limit eligibility to low-level, non-chronic offenders
Access to a restorative justice program as a diversion from the traditional system should be only be available to offenders who have committed non-serious offenses and do not have an extensive criminal record. Restorative justice does not seek to address the criminogenic risk factors (such as criminal peers, antisocial personality traits, and history of deviant behavior—elements highly correlated with recidivism) of serious offenders as do most rehabilitative programs. Further, a chronic offender (even having committed several low-level offenses) is not likely the victim of a single poor decision and should not be considered for diversion from the criminal process.
The restorative justice model alone cannot fully address instances of serious crimes. Restorative justice can provide little reparation to a victim who may never walk again, or a mother who lost her child. Likewise, restorative justice only offers little rehabilitative value for the high-risk offender, as the process does not explicitly address criminogenic risks and needs except perhaps in building empathy.39 Perpetrators of serious crimes often engage several “thinking errors” that obviate their own responsibility in the matter. A few existing studies on restorative justice initiatives have found some success in remedying thinking errors when used with serious offenders.40 However, this is likely attributable to the offending base rate among low-level offenders (i.e., that they will likely not recidivate regardless of outcome) and the fact that high-risk offenders have such a dense constellation of criminogenic risks and needs that nearly any form of treatment or mediation will produce a small positive effect, regardless of the appropriateness of the intervention.
Nonetheless, since the overriding purpose of restorative justice is to address the victim’s needs, there can be value in more serious cases of giving the victim the option of meeting with the offender in addition to the prison term imposed by the traditional court system, provided that trained professionals have met with both the victim (or victim’s survivor) and offender separately in advance to ensure the encounter will be constructive. For many years, the Texas Department of Criminal Justice has operated such a program whereby victims, after months of preparation, can choose to go into prison for a mediated meeting with the offender. Given that this is not a diversionary use of restorative justice and that many of these offenders will not likely get out of prison, the primary goal here is to help the victim, or victim’s survivor, achieve some measure of closure and healing. In many instances, the victim or the victim’s survivor benefits from seeing contrition on the part of the offender and from being able to receive answers to questions about what occurred and why it happened.
Programs should be Pre-Trial and Pre-Sentencing,
A proper restorative justice diversion program should begin after the arrest of an eligible offender and upon the consent of both parties. In the interest of both parties, any diversionary mediation between the victim and the offender should be reserved for after the offender has taken responsibility for the crime in question, though this need not involve a formal guilty plea that could create a permanent criminal record. Instances where restorative justice programs fall short often involve offenders being sentenced to take part in the program rather than participating on their own accord. Without the intrinsic “buy-in,” offenders are likely to negotiate a plan in bad faith, are unlikely to make restitution, and are likely fail the conditions established during mediation.41
A pre-trial opportunity to engage in the restorative justice process allows the offender to show initiative in seeking to make the victim whole again. A post-sentence choice would let the offender choose their more preferable punishment, reducing engagement in the process to the strict rational calculus in lieu of contrition.
Engaging in restorative justice mediation should be voluntary for both the victim and the offender. Following an indication that the offender is willing to take responsibility for the harm they have done, the victim may be approached by the prosecutor or the court and asked if they are amenable to engaging in restorative mediation. If the victim (or offender) wishes not to engage in the process, the offender can be brought to trial or enter into a plea bargain with the prosecutor as is common procedure. Similarly, the victim may terminate the proceeding and remand the offender to the court for sentencing if at any time during the mediation and execution of the agreement the victim (or offender) becomes unsatisfied with the process.
Offer a Minor Incentive for the Offender
Along with the opportunity to repair the harm caused to their victim and to the community, the offender should have a minor incentive to complete the restorative justice process. For example, a restorative justice program may have an automatic expunction of the offense after an established amount of time had elapsed. This would provide supplementary motivation to engage in the process with good faith, as well as removing the offense as a barrier to full reintegration upon completion. The limited nature of eligible offenses and the contingency of the full, satisfactory completion of the process make this a token benefit to the offender, but an important one nonetheless.
Provide for a Measured Roll-Out
As restorative justice programs fundamentally change the underlying logic of the extant criminal justice system, adoption in Texas should be incremental. Pilot programs could be launched in large Texas cities; those with criminal dockets containing enough eligible cases to merit the intervention. Research should be conducted into the comparative outcomes, victim satisfaction, offender compliance, costs, and benefits. After a designated period of time, the programs should be subject to rigorous evaluation. Programs that fail to produce meaningful victim and/or offender outcomes or that are more costly than estimated should be eliminated, while those that produce marked benefits be analyzed for best practices.
Due to the popularity and satisfaction with the civil alternative dispute resolution process, or ADR, there are approximately 18 city, county, and regional dispute resolution centers in the State of Texas. These centers are funded by court fees assessed in civil complaints and would likely be amenable to diversifying their caseload. Further, adopting low-level criminal cases into the ADR process would not likely increase costs as most communities contain willing volunteers to mediate conflicts and keep the cases from the criminal justice system.
Restorative justice programs will lead to better outcomes if there is an accommodating policy context. The Texas Legislature has several tools at their disposal to support prospective restorative justice initiatives. For example, lawmakers could implement legislation allowing police officers to divert minor misdemeanor offenders, with the consent of the victims, as a way of easing entry into the restorative justice process and relieving the court of low-level complaints. In addition, with proper training, the police have shown prodigious skill in using their discretion to keep low-level offenders from the criminal justice system.42 Empowering police officers to make pre-booking referrals to a restorative justice program would save both time and money.
Procedurally, victims can be empowered in the negotiation and acceptance of plea arrangements. While extant law in other states does not grant victims superlative authority in the acceptance or rejection of plea bargains, prosecutors are often compelled to inform victims of plea arrangements and relay any objections to the court. Further, prosecutors can be obliged to consider input from victims in deciding what charges to bring forward or what plea deal to accept. Texas currently has no such laws in place. Adding a procedural provision to the existing state code, would give victims a greater voice in the criminal justice process, and a law modeled after the Arizona statue would compel the court to use victim input if offered.
Texas has recently passed a law that strengthens the victim’s role in the criminal justice system. During the previous session, the Texas State Legislature passed Senate Bill 1237. These bills amended the Code of Civil Procedure, allowing ADR procedures to be used in lieu of criminal court upon prosecutor referral. This alternative, less-costly option for disposing of minor cases is a marked step in the right direction, though it is still reliant upon prosecutorial discretion for the diversion to be made. Lawmakers should limit the prosecutor’s ability to block a diversion requested by both a victim and an eligible offender.
Restorative justice programs represent a modern development in criminal justice. In contrast to the current legal tradition of establishing the State as the victim of criminal activity, this approach prioritizes the victim. The loss suffered by the victim is the tangible wrong to be remedied, not the injury to the state; an abstract entity. Physical property is returned or replaced, psychological well-being is restored, and contrition for the act is made known to the victim. Restorative justice programs also offer promising reductions in recidivism for certain offender populations.
Restorative justice programs are, at their core, still punitive. The numerous stipulations imposed on offenders oftentimes include community service, restitution, and other community-based sanctions. Studies into the equivalency of punishment—that is, what prison sentence would offenders prefer to a community-based alternative—have found that, given the choice, offenders may prefer serving time in institutional setting versus having to meet the obligations of community sanctions.43 This speaks to the fact that punishments outside of prison are still unpalatable to offenders.
Finally, restorative justice programs can reduce costs to tax-payers by reducing caseloads for prosecutors, court-appointed counsel, and judges as well as reducing the number of people in prison or on probation to the extent the programs divert offenders from correctional control.
The adoption of restorative justice programs does not ensure that all victims will be fully made whole, nor does it offer a process that all participating offenders will benefit from. However, it does offer a proven alternative to the current system that the treats victims as major entities in the criminal justice process. Properly implemented, evidence-based programs offer the opportunity for increased victim satisfaction, greater public safety, and substantial cost-savings over costly correc- tional sanctions.44
19 Edmund McGarrell & Natalie Kroovand Hipple, “Family Group conferencing and Re-offending among First-Time Juvenile offenders: The Indianapolis experiment,” Justice Quarterly, 24:2 (2007).
30 Heather strang, lawrence sherman, daniel Woods, and Geoffrey barnes, “experiments in Restorative Policing: Final Report” Report from the austra- lian institute of criminology (2011).