by Jan Peter Dembinski, Esq.
Restorative Justice— Time to Take it Seriously?
In this article, I will address a variety of issues concerning restorative justice in Ver- mont: what it is, whether it is effective, whether it is taken seriously in Vermont, how it became a statutory policy for our criminal justice system, its potential scope in Vermont’s criminal justice system, the present flood of plea bargaining in crimi- nal justice, and why it is time to take restor- ative justice seriously as a means of restor- ing criminal justice in Vermont.
What is Restorative Justice? While some readers of the Vermont Bar
Journal may be well aware of what restor- ative justice is and how effective it can be, I am certain many have only a vague or par- tial grasp of it—even though 28 V.S.A. § 2a proclaims, “It is the policy of this state that principles of restorative justice be included in shaping how the criminal justice system responds to persons charged with or con- victed of criminal offenses.”
Restorative justice is the theory that shapes processes in which those impact- ed by a crime or harmful event share how they have been affected by it and what can be done to restore their lives. This in- cludes directly impacted persons, the per- petrators, and often various supporters of both the impacted persons and the per- petrators, and, generally, community rep- resentatives indirectly impacted. After the preliminary sharing and disclosures, res- toration contracts are discussed and, ide- ally, agreed upon. Perpetrators must re- veal what they were thinking at the time of their harmful actions and must be open to effecting restoration of the impacted per- sons according to their needs. Community supporters and family of both the impact- ed parties and the perpetrator may be al- lowed to be—or need to be—part of a re- storative justice process to express how they have been affected by the actions of the perpetrators and to provide realistic in- put as to the viability of conceived resto- ration agreements. All parties participate voluntarily. Depending on the seriousness of the offense and the parties’ needs, a restorative justice process can take hours or extend over days. Facilitators of the re- storative process must initially determine if the responsible party acknowledges com- mitting the offending action and is willing to talk about it. Facilitators must also be- come aware of the attitudes and vulnera- bilities of all the parties before commenc-
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ing a process. Because what the parties say in the processes is inherently unscript- ed (though the questions to be answered may be, and often are, scripted), facilitators must be alert to averting any further harm to the already harmed parties during a pro- cess and be ready to curtail or postpone it if need be. Unsuccessful processes return the perpetrators to traditional justice pro- cesses. Restorative justice processes are not for everybody and all situations. They do not supplant traditional justice process- es—they complement them. There are a variety of restorative justice
processes that more or less mirror what I have described: victim-offender mediation, family group conferencing, restorative con- ferencing, community restorative (repara- tive) boards, restorative circles, circles of support and accountability, and sentenc- ing circles. On a more or less regular basis, the community justice centers and various agencies like court diversion, the Depart- ment of Corrections, and the Department for Children and Families have been uti- lizing these processes for the last decade. Full descriptions of these processes are available in many places online—for exam- ple, the website of the Office of Juvenile Justice and Delinquency Prevention of the U.S. Department of Justice.
Is It Effective?
There is a great deal of evidence that vic- tims of crime are more satisfied with restor- ative justice processes than they are with traditional criminal justice adjudication and sentencing. An excellent study of the ef- fectiveness of restorative justice is Restor- ative Justice: The Evidence by The Smith Institute of the United Kingdom. As for vic- tims, the study opines, “strong and con- sistent positive findings about victim ben- efits in the great majority of cases lead us to conclude that victims will generally ben- efit from participation whenever they have the opportunity to do so.”1
The study also
concludes: [A]cross all these
studies including
many kinds of offence type the conclu- sions are clear: when victims consent to meet their offender in an RJ (“Re- storative Justice”) conference they are usually satisfied with their experience provided that 1) the RJ meeting hap- pens as promised and 2) the offend- er complies with the undertakings they
THE VERMONT BAR JOURNAL • WINTER 2014
made during the conference. Further- more, available evidence shows that these victims are far more satisfied than their counterparts whose cases are dealt with in the formal justice sys- tem.”2
Some other remarkable evidentiary find-
ings from The Smith Institute’s report in- clude the following: • “Compliance with outcome agree- ments is important for the integrity and reputation of [an] RJ programme as well as for the sake of victims. Measured simply by average rates of promise keeping, the evidence to date is indeed encouraging that RJ may do better than CJ [traditional criminal justice].”3
• “The key finding [respecting reducing repeat offending] is that RJ may work better with more serious crimes rather than with less serious crimes, contrary to the conventional wisdom.”4
• “While RJ is often most widely ac- ceptable when used for such low-seri- ousness offences (such as shoplifting, drink-driving, and public disorder), it generally does worse in these tests than in tests on more serious crimes.”5 Also of great significance are the find- ings in a chapter entitled “Restorative Jus- tice and the Rule of Law”: • “Restorative justice is arguably the most common approach to law in most societies throughout most of hu- man history.”6
• “Whether an offender pleads guilty in court, or tells a police officer he would be willing to meet with the crime vic- tim and take responsibility for the harm he has caused (or ‘decline to deny the offence’, as it is put in New Zealand), the question of liability for the crime is always resolvable under the rule of law, and not by the discre- tion of the stakeholders in an RJ delib- eration … All of the ground rules for that transfer and the decisions to be reached can be established and regu- lated by case law or statute.”7
• “RJ can become a ‘rebalancing’ of the interests of crime victims and the state that may improve public respect for law. RJ may afford the opportunity for maintaining the capacity of justice to protect the community in future, and maintain fairness about past actions. At the same time, it may promote a
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