included the statute in the Vermont Stat- utes Annotated not in Title 4, “The Judi- ciary,” or Title 13, “Crimes and Criminal Procedure,” but in Title 28, “Public Institu- tions and Corrections,” implies it is not di- rectly in the domain of criminal court judg- es and prosecutors. But does the Depart- ment of Corrections have the responsibility for seeing all the policy goals of 28 VSA § 2a implemented? How realistic is that? The Department of Corrections cannot step in and tell judges or prosecutors how to con- duct their roles. Nonetheless, in the recent- ly revised edition of its Sentencing Options Manual, the Department has outlined pro- posed practices for how judges, prosecu- tors, and defense attorneys could expand the implementation of restorative justice in the criminal justice system.12


But, to date, I


have come across no evidence its propos- als are being taken seriously in any criminal court in our state.


Attorney General William Sorrell in his VPR “Vermont Edition” debate with T.J. Donovan during the campaign for the at- torney general seat in the 2012 election, was asked, “Who bears the main responsi- bility for insuring that something is done in the criminal justice system to actualize the [restorative justice] statute’s policy goals, state’s attorneys, judges, anyone?” His an- swer is informative:


It’s a combination. Certainly it is the separate but equal branch of govern- ment, the judiciary, that is the ultimate arbitrator of this, but law enforcement has a role to play and, clearly, state’s attorneys and the attorney general, and the legislature in enacting statutes that not only state a policy but can is- sue mandates just like the legislature just did. I put out the bias-free policing policy for law enforcement all over the state. A number of departments ad- opted it but not all, so the legislature just stepped in this session and man- dated that departments have a bias- free policing policy as they should. So it is a combination of a number of dif- ferent players to reach this result that we seek.13


First, it is important to note the agen-


cy Sorrell did not include in his list of re- sponsible role players—the Department of Corrections. And though Sorrell acknowl- edges that his office and the state’s pros- ecutors have roles to play in integrating restorative justice into the criminal justice system, his extended comment about the role of the legislature implies he thinks that if the legislature really wants the criminal justice system to take effective statewide steps to integrate restorative justice, then it needs to mandate as much. Like most of the rest of Vermont’s criminal justice sys-


22


tem, the Attorney General’s Office under Sorrell’s leadership has taken no discern- ible initiative that I can see in advancing the stated goals of the restorative justice statute. There is only one mention of re- storative justice anywhere in the website of the Office of the Attorney General, a non- committal observation that court diversion follows “a balanced and restorative jus- tice model: putting right the wrongs that have been done by addressing the needs of all stakeholders, including the victim, the community, and the offender.”14


How Did Restorative Justice Become Vermont State Policy?


The awkward and ineffectual placement of the restorative justice statute in Title 28 was a direct result of how the statute came into existence in the first place. According to John Gorczyk, Commissioner of Correc- tions at the time the statute came into ef- fect in May 2000, he had been pressing the Rules Committee to incorporate “restor- ative language in statute” because “[Cor- rections] had been running a program [rep- aration boards] based on restorative prin- ciples for the last four or five years.”15


The


actual wording of the policy was craft- ed by the Senate Institutions Committee, chaired by Senator Vincent Illuzzi. Accord- ing to Senator Illuzzi, there had been grow- ing concern among legislators that victims were not being represented very well in the criminal justice system. Enacting the restor- ative justice policy was one of the ways the legislature was able to make sure that vic- tims’ needs were given the attention they deserved.16 But, as far as I can tell, there was no leg- islative discussion concerning the statute. A whole new state policy that calls for the gradual transformation of the criminal jus- tice system without a single word uttered about it in legislative debate? It makes one marvel: “Can such things be, / And over- come us like a summer cloud, / Without our special wonder?”17 pen? Why no debate?


How could this hap-


The statute was added at the end of a lengthy Senate amendment to a large ap- propriations bill, H. 850, as the fifty-ninth amendment. Evidently, there was no dis- cussion of it on the first day the bill was in- troduced on April 20, 2000, according to materials available online through the Ver- mont Legislative Bill Tracking System. Nor was there any discussion of it the next day. On motion of then Senator Shumlin, at the end of the session on April 21st, rules were suspended and H. 850 along with four oth- er bills “were ordered messaged to the House forthwith.” The bill was then passed on May 15, 2000, per House and Senate agreement but, evidently, without debate


THE VERMONT BAR JOURNAL • WINTER 2014


(again, no materials in the legislative track- ing system indicate any debate). Jack An- derson, a house representative from Wood- stock at the time, whom I spoke to on this subject could not recall any debate whatso- ever in the house about restorative justice as a Vermont state policy. There was, however, a house resolution,


H.R. 14, passed on April 30, 1999, that the commissioner of corrections and the court administrator and others “examine and an- alyze existing and alternative approaches for the department of corrections to meet current and future demands placed upon it” and to prepare recommendations for “state statutes pertaining to crimes, sen- tencing and the department of correc- tions.” The resulting report in January 2000 recommended that the legislature enact a bill “authorizing communities to provide reparative justice alternatives to traditional correctional sanctions” and to “[r]econcile the purposes of Title 13 with Title 28.”18


The Potential Scope of Restorative Justice in Vermont


The policy as stated in 28 V.S.A. 2(a) does nothing to reconcile Title 13 with Title 28, but it goes far beyond focusing on Sena- tor’s Illuzzi’s concern with victims’ needs: “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 convicted of crim- inal offenses.”19


One reason for the broad


reach was presumably to address Correc- tions’ concerns with having statutory policy supporting its re-entry and integration pro- grams and other similar programs it might devise. In Senator Illuzzi’s opinion, the pol- icy does not set out “marching orders,” so to speak, for prosecutors and defense at- torneys in the criminal justice system but provides a viable alternative for certain cases:


Participation in a restorative justice


process is not something a court can force a person to do—so it is only ap- propriate when the court and the dis- trict attorney have determined an of- fender is willing to participate volun- tarily in a restorative justice process and complete any agreement that comes out of that process, which could include a punitive aspect, such as jail time, as well as restitution to a victim and community service.20


But the senator’s statement begs the ques- tion, “When should the court and the dis- trict attorney determine ‘an offender is willing to participate voluntarily in a re- storative justice process and complete any agreement that comes out of that process, which could include a punitive aspect, such


www.vtbar.org


Restorative Justice


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36