The criminal justice system is broken. Restorative justice can help fill the gap.
Written by Erika Sasson • Originally published in Vox.com on September 6, 2023
Photo via Getty Images
What was happening in the courtroom that day in New York City was unusual. The judge was set to sentence a young man to prison for shooting a gun and killing a bystander. Court hearings for this type of crime are understandably charged: Typically, the relatives of the victim sit on one side of the gallery, as far away as possible from the family of the person who killed their loved one. Harsh words are often exchanged; sometimes, fights break out.
Besides that tension, there is almost no actual accountability. The defendant passively answers “yes” or “no” when asked if they plead guilty, while the victim’s family may at most have the chance to make a victim impact statement, which is the moment when victims can tell the court how the crime has affected them. (I’m using the terms “victim” and “defendant” for clarity, but in the restorative justice movement that I’m a part of, we avoid using such labels because they can obscure nuance. We also promise confidentiality to people who participate in the system, which is why I’ve made all parties in this case anonymous.)
Rarely, however, will a defendant take any meaningful responsibility for their actions, and rarely, too, will a victim’s family get any type of closure. Once the person has been found guilty, we simply send them to prison without a word.
On the day in question, it was different. I arrived at the courthouse with the husband of the person who had been killed, and remained glued to his side throughout the unbearable day. Soon after, the mother of the defendant arrived with her younger child in tow and other members of her family.
And this is where the court hearing became unusual. The defendant’s mother beelined over to us to hug me, and then she proceeded to hug the victim’s husband too. The man who had lost his husband received the mother of his killer with warmth and appreciation. When the lawyers finally arrived, they found us all standing together instead of in our respective corners.
The coming together of both parties before sentencing is nearly unheard of — particularly in violent cases of this kind. Our system is designed to be adversarial and combative; one side wins and one side loses. But in this case, I watched as the prosecutor spoke to the defendant’s mother, who profusely thanked him for the opportunity to participate in a restorative justice process, while the defense attorney spoke kindly with the victim’s husband.
When the judge was ready, we all walked inside and sat together — the families of the victim and defendant in one row. The prosecutor explained to the judge that through a restorative justice program, the defendant had taken real accountability for what he had done.
The origins of restorative justice
Over the last decades, many communities have been shifting to the promise of restorative justice as a way to respond to conflict and violence. Restorative justice is inspired by teachers from various Indigenous traditions such as peacemaking, who have been practicing a sacred approach to justice for generations. A prominent restorative justice thinker, the criminologist Howard Zehr, describes the approach as moving away from looking at which law is broken and toward an inquiry into who was harmed, what that person needs to heal, and whose obligation it is to meet those needs.
Over the last decade — after a brief foray as a prosecutor in Canada, which revealed to me so many of the insufficiencies of the conventional criminal justice system — I have been exploring how restorative justice can shift relationships, respond to conflict, and even help chart a path forward in the aftermath of devastating harm. My role in these cases is as a facilitator — working with both sides and their loved ones — to understand the needs at the heart of the matter and to help people find their own footing to move forward.
In the case above, I designed a restorative justice process that took the better part of a year. My first step — as it always is — was to meet with the victim’s husband to ask him what he needed to begin the healing process. He repeatedly expressed the need to meet with the defendant, a young man in his early 20s. He wanted to understand what had happened that day; he thought he may even want to forgive. Either way, the kind of faceless prosecution that is the norm in the criminal justice system wasn’t enough for him.
I then began to meet with the young man, to understand whether he would be open to this kind of process. This took time. Over many months, he and I, as well as my co-facilitator, tried to unearth how he had ended up at this terrible crossroads. We talked about all kinds of things, sharing information about our lives and developing a real connection. Eventually, we had built enough trust to begin the process of exploring how he might accept responsibility for his actions.
Finally, almost nine months after the start of the process, after he had pleaded guilty in court but before his formal sentencing, we all came together for a facilitated dialogue; one without any lawyers present, one where the young man was able to witness the husband’s grief and share his own remorse. The defendant’s mother was there too, supporting her son’s willingness to take responsibility and sharing her overwhelming regret for what had transpired.
When we had finished, the police officer in charge outside the door — who had, earlier that day, rolled his eyes at our “kumbaya meeting” — said to my co-facilitator and me, “In nearly 40 years of working homicides, I’ve never seen anything like this.”
Back in the courtroom, at the moment of sentencing, the prosecutor suggested that the court impose a lower sentence in light of the defendant’s efforts toward transformation. But first he invited the victim’s husband to share his victim impact statement. The husband walked to the podium and began to speak:
“I would like the court to know that I forgive this young man. Not because I’m a minister, not because I have to, but because of the heartfelt conversation that we had in the restorative justice program.”
The judge imposed a lower sentence, and that was it.
Bringing reconciliation to the courtroom
The softening we had witnessed between the parties will never change what happened, nor make it okay in any way. And this process cannot be used for victims who choose not to seek that type of connection, nor for people who choose not to accept any responsibility for their actions. Of course, some could try to use it to manipulate people and systems in their favor. But in my experience, it takes an unparalleled level of grit and bravery to sit and face the person you harmed, or their deepest loved one, and tell the truth about yourself.
Despite the enormity of the loss at issue in this case, the question animating a restorative process is not about trying to change the past; rather, in the words of the Navajo peacemaking tradition, it asks: What do we need to move forward in a good way?
In the criminal legal system, many defendants deny what they’ve done. They deny it throughout the legal proceedings, where they’re advised to remain silent and plead not guilty. Over time, this may even encourage them to believe they didn’t do anything wrong. But this course of action, even if it’s an accepted part of the criminal justice system, does nothing for a person’s growth or capacity to change, which requires at minimum an honest acknowledgment of how one behaved in the first place.
Meanwhile, the private, searing pain felt by victims of harm becomes an object of the state, which gets to determine the method of resolution. But victims, like everyone else, are individuals. Some of them need answers to burning questions. Others want to understand the circumstances that sparked the moment of harm. And for many, the unending incarceration of the defendant does little to bring them peace, especially given the glaring racial disparities in the prison system that tend to undermine the system as a whole.
It doesn’t have to be this way. We know that mass incarceration at the gargantuan annual cost of $270 billion in the United States has done little to reduce violent crime or create healthy communities; in fact, for the most part, it has done the opposite. Yet politicians capitalizing on overhyped fears of violent crime are pushing for a return to an even more punitive criminal justice system.
Undeterred, in communities around the country, people are working to build new strategies for responding to harm focused on safety, healing, and accountability. There are opportunities to create dialogue centered in community, without any system involvement, and others that create off-ramps for people embroiled in the justice system, all while centering — not forgetting — the victims of crime in the process.
After the sentencing was over and we had all turned to leave, the victim’s husband was stopped at the door by two family members of the defendant. They thanked him for what he’d said to the court and hugged him.
“I didn’t do anything,” he replied. “It’s just the truth.”
