rehabilitation whenever possible.44 As I mentioned previously, nearby Nova Scotia is leading the way—in a manner Ver- mont has failed to follow. But Vermont still could be a leader in institutionalizing re- storative justice and lead the way for the rest of the United States. From my research this summer, I discovered that eighteen states have some kind of legislation that in- cludes the term “restorative justice.” The legislation looks like patchwork, at best. No state’s legislation reflects a conception of restorative justice as an integral part of a comprehensive system of justice. I have included a summary of the states’ statutes I reviewed in the endnotes to this article.45 The governor, legislators, judges, and at-


torneys of Vermont will not need to go far if they are interested in learning more about implementing restorative justice in a more comprehensive and responsive manner. As I was contemplating researching and writ- ing this article, Professor Gale Burford of the University of Vermont, and one of our nation’s leading scholars in the field of re- storative justice, was envisioning a confer- ence that would convene some of the fore- most thinkers in the academic world on the subject of restorative justice and respon- sive regulation. And now a conference date has been set, July 18-21, and invitations to many keynote speakers have been ac- cepted, including speakers from Nova Sco- tia, Great Britain, and Australia—common- wealth countries that have led the way in implementing institutional changes based on restorative justice to their criminal jus- tice systems.46


I hope legislators, judges, state’s attor- neys, and defense attorneys—as well as agency officials who could use restorative justice processes to transform and resolve conflicts and any other interested Vermont attorneys—will not only attend the confer- ence but be willing to share their concerns and ideas during some of the panel pre- sentations. They might be surprised at how


significant restorative justice principles and practices can be to their daily lives—and how restorative they can be for our crimi- nal justice system as a whole and for the welfare of our state. ____________________ Jan Peter Dembinski, Esq., is an attor- ney who lives in Woodstock, VT. He teach- es legal education classes for the Vermont Department of Corrections with its Access to Courts Division. He has also worked as a restorative justice facilitator for the De- partment of Corrections. He has written previous articles on restorative justice for the Vermont Bar Journal and has presented four times on restorative justice issues at in- ternational conferences at the International Institute of Restorative Justice.


____________________ 1


3 4 5 6 7 8 9


LAWRENCE W. SHERMAN & HEATHER STRANG, RESTOR-


ATIVE JUSTICE: THE EVIDENCE 62 (2007). 2


Id. at 65 (emphasis added). Id. at 58. Id. at 68. Id. at 70. Id. at 44. Id. Id.


Interview with Robert Sand by the author,


September 2013. 10


Lisa Bedinger, the director of the South Burl- ington Community Justice Center (“SBCJC”), in conversation this fall, told me the center handles 200-250 cases per year and that only one or two may be “technically” a felony; reparative proba- tion cases might also involve felonies but these cases do not come directly to the centers but pass through the court system with reparative probation generally tacked on as an additional sentence enhancement or as a condition of re- lease. Over 50% of the SBCJC’s cases are misde-


meanor retail thefts. 11


Involved Communities Support Vermont’s Re- storative Justice Panels, available at http://www. courtinnovation.org/research/involved-commu- nities-support-vermonts-restorative-justice-pan-


els. 12


Department of Corrections Sentencing Op-


tions Manual, 2013, at 16-19, available at www. doc.state.vt.us/about/what/sentencing-options-


manual. 13


AG’s Race,” Aug. 23, 2012. 14


VPR, Vermont Edition, “Debate: Democratic Office of Vermont Attorney General, http://


www.atg.state.vt.us. 15


Montpelier, July 18, 2003. 16


author, Montpelier, Nov. 4, 2003. 17


Interview with John Gorczyk by the author, Interview with Senator Vincent Illuzzi by the Macbeth after seeing Banquo’s ghost at the


banquet. Macbeth, III. iv. 109-111. 18


Corrections in Vermont: A FIVE-YEAR PLAN Making Vermont Safe for the 21st Century, Ex-


ecutive Summary, Jan. 15, 2000, at 2. 19


28 V.S.A. 2(a) (emphasis added). 20


Interview with Sen. Illuzzi, supra note 16. In the same interview, Senator Illuzzi expressed his opinion that the policy’s focus is on minor level offenders, but he acknowledged that the policy allows the criminal justice system to use restor- ative practices for any criminal offense and for


sentencing purposes. 21


Interview with Sen. Illuzzi, supra note 16. The


Vermont legislature, however, has since limited the scope of the statute by forbidding any “case involving domestic violence, sexual violence, sexual assault, or stalking [to] be referred to a community justice center except in department of corrections offender reentry programs … ” 24 V.S.A. § 1967. This restrictive statute, however, may have been an overreaction and premature, as scholars and practitioners have shown that certain restorative justice practices can be used in some cases involving these offenses. See Don- na Coker, Restorative justice, Navajo Peacemak- ing and Domestic Violence, 10 THEORETICAL CRIMI- NOLOGY 67 (2006); see also Joan Pennell & Gale Burford, Feminist Praxis: Making Family Group Conferencing Work, RESTORATIVE JUSTICE AND FAM- ILY VIOLENCE 108 (Heather Strang & John Braith-


waite eds., 2002). 22


23 Id. at 481.


24 Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012). 25


Justice Scalia envisions such “clogging” in his dissenting opinion in Lafler: [T]he Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law. The ordinary criminal process has become too long, too expen- sive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice. The Court now moves to bring perfection to the alternative in which prosecutors and defendants have sought relief. Today’s opin- ions deal with only two aspects of counsel’s plea-bargaining inadequacy, and leave other aspects (who knows what they might be?) to be worked out in further constitutional liti- gation that will burden the criminal process.


Lafler, 132 S.Ct. at 1391-92 (citations omitted). 26


Tim Lynch, The Devil’s Bargain, REASON, July 2011, at http://www.cato.org/publications/com- mentary /devils-bargain-how-plea-agreements-


never-contemplated-framers-undermine-justice. 27


.org/wgbh/pages/frontline/shows/plea/view. 28


29 30 31


Id. Id. Id. Id.


32 Lafler, 132 S.Ct. at 1379.


33 Missouri v. Frye, 132 S.Ct. 1399, 1413-1414 Id. at 1407.


(2012). 34


35 Vermont Center for Justice Research data per


author’s request, provided by Robin Adler We- ber, Senior Research Associate (spreadsheet of 2000-2012 trials on file at Vermont Bar Journal


and with the author). 36


hearing the witches’ prophecies. 37


26 THE VERMONT BAR JOURNAL • WINTER 2014


Macbeth, I.iii.84-85. Banquo after seeing and In Macbeth, the three witches before they


www.vtbar.org


Frontline: The Plea (PBS television broad- cast June 17, 2004), available at http://www.pbs


Slocum v. Clark, 154 Vt. 474, 478 (1990).


Restorative Justice


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