Restorative Justice: Moving from Punishment to Healing

Monday, October 8, 2012 1:25:00 AM

By Linda Steiner

Imagine you see a woman on a street corner weeping, her torn purse on the ground and two small children wailing beside her. You see a hooded man sprinting away.

What would you do? Attend to the woman and her children or try to apprehend the man?

It’s human nature to want to help the victim first. And most people given this scenario respond that way.

But that’s not the way the criminal justice system works. There, the focus is on the offender, with the majority of resources devoted to court proceedings, jail, probation, parole, etc. The Community Conferencing Program within the Milwaukee County Office of the District Attorney believes that, for a number of reasons, the thought behind the above scenario is a better way to go.

Community Conferencing is one example of the larger concept of restorative justice, which operates in several different forms in about 300 programs around the nation and in Canada. The main idea behind all of them is to bring together victims and offenders to tackle crime – and healing – from another angle.

The goals include giving closure to victims by allowing them to face the offenders, explain how crime has affected them and to have some say in what ultimately happens as a result of the crime. Community conferencing also allows offenders to own up to their crimes in a very personal way, to realize the impact their wrongdoing has had on their victims and, because community members are added to the mix, on society at large.

“The criminal justice system asks what law was violated, by whom and how do we punish the offender?” said Erin Katzfey, program manager of Milwaukee’s Community Conferencing Program. “Restorative justice asks, what harm was done, how can it be repaired, who’s responsible for the repair, and what needs to be done to accomplish the repair?”

Three members of the Stritch community, history professor Sister Justine Peter, OSF, Ph.D., and students Carolyn Espinoza and Margaret Germanotta are involved in Milwaukee’s program. The two students have done internships and all three have acted as co-facilitators in community conferences. They all believe the program is an excellent example of how Stritch’s Franciscan values of compassion, peacemaking and creating a caring community can be carried out in very practical ways.

“I liked the concept,” Espinoza, 53, a senior majoring in political science, English and writing, said in explaining why she got involved. “A person who commits a crime has the opportunity to repair the harm they did to the community and also to receive another chance to be a responsible member of society. That just appealed to me.”

It’s all about accountability, Katzfey said. Rather than focusing on blame and guilt, restorative justice involves problem-solving, obligations for the future and repairing.

“The emphasis is on dialogue and communication, rather than on inflicting some kind of pain on the offender,” she said. “The goal is to provide an opportunity for both the victim and offender to move forward, and the community helps facilitate the process.”

How does it work? Cases that might be suitable for community conferencing are referred by prosecutors, defense lawyers, judges, victims-witness advocates, law enforcement personnel, probation officers, the Public Defender’s Office, and even some victims. A referral generates a review by David M. Lerman, the assistant district attorney who heads the program, to determine if it is appropriate. Lerman is one of two prosecutors in Wisconsin who do restorative justice full time. The other is in Outagamie County.

Both victim and offender must agree to the process, which is used in Milwaukee only with non-violent, non-drug-related crimes, mostly misdemeanors. Offenders must accept responsibility for the act and display some degree of remorse. Lerman also looks at their prior record and their attitude about meeting with the victim.

Because of the above requirements, many referrals turn out to be inappropriate for the program. Since May of 2000, when Milwaukee started the Community Conferencing Program, Lerman has had about 230 referrals, resulting in about 70 conferences. Those that have gone through the conferencing process have had mostly positive results, he said.

“Studies have shown that victims are very satisfied and would recommend the process to other victims, “ he said. “Recidivism also goes down, and, when we look at cases where people re-offend, the crimes are less likely to be more severe.”

As it is carried out in Milwaukee, community conferencing may occur after an arrest but before the offender is formally charged with a crime. Successful completion of the process may result in lesser or no charges. Sometimes cases already have resulted in charges against the offender, and a lesser sentence or no sentence at all may result.

Parties in a successful community conference produce a written agreement, which is forwarded to the legal system. What ultimately happens is up to a judge or the prosecutor’s office, but the system usually responds favorably to offenders who own up to their crimes and take steps to make amends with their victims and society, Katzfey said. If an agreement is not completed, however, it will be a factor in charging or sentencing, she said.

Lerman said there are several advantages to community conferencing. In terms of time, this process usually occurs much closer to the crime than if a case goes through the traditional legal system. Victims’ concerns are addressed in more detail as well as more quickly. Offenders may get the tangible benefits of a lesser recommendation from the prosecutor, a lesser sentence from a judge, or dismissal. And the process helps clear cases from the regular judicial system, saving it time and money.

One way cost savings are realized is through the use of lay people as facilitators and co-facilitators. In terms of duties, the facilitator’s key roles are to bring all the parties together in an agreed-upon location, select community members to participate, and keep the conference on track as it proceeds. In advance of the conferences, the  facilitator also must hold separate pre-conference meetings with the victim and the offender to briefly go over the facts of the case, its impacts, potential ideas for actions on repairing the harm, and general ground rules for the conference (courteous behavior, no swearing, whether family members will attend, etc.)

The co-facilitator helps guide the conference as it proceeds and writes up the written agreement. Community members, who as much as possible should reflect characteristics of the parties involved, including race, gender, age, etc., ask questions and give suggestions as to what to do to repair the wrong. The District Attorney’s Office monitors compliance with the agreement.

“The facilitator provides guidance to the parties, but it is the parties – victim, offender and community representatives – who really do the work in reaching an agreement,” Lerman said.

Training for facilitators and co-facilitators includes two eight-hour sessions. Facilitators must also act as a co-facilitator or community member in at least two conferences before leading one. Periodic meetings also are held for facilitators and co-facilitators to share successes and concerns and exchange information, Lerman said.

“Listening, being non-judgmental, being able to sit back and observe and guide are not necessarily easy things, and those are key facilitators’ skills,” he said.

But when it works, it appears to be of great benefit to everyone involved.

At a recent community conference at which Carolyn Espinoza was the co-facilitator, the victim was a large discount store chain, represented by a loss-prevention manager. The offender, a former clerk, had taken a cell phone and a phone card with a total worth of about $325.

Jack, not his real name, was very open about his theft and admitted there was no reason for it. He didn’t need the phone. He already had one. He did it because, in essence, everyone was doing it.

“As an employee, you know the security system,” he said. “I guess it was because it was kind of easy.

“I was just greedy,” Jack said. “That’s what makes it so hard. Now I’m in this predicament, and I took something I didn’t even need!” he said, clearly disgusted with himself. He told how the arrest and the week he spent in jail had hurt his mother and other family members, who now avoided the store because of the embarrassment.

The store representative explained that, although this particular loss would not hurt the large chain greatly, the repetitiveness of such crimes posed a real threat to a given store’s viability. Too much loss can mean a shutdown, which greatly harms many people, including the neighborhood in which it is located. The community members established how important having such a store was to their neighborhood, expressed concern about continued employee theft, and volunteered to get Jack involved in community service projects at their churches. They suggested Jack give the store representative details on how employees were pilfering.

That’s when the victim’s representative got personal.

“I was an inner-city kid, and I got in trouble when I was 18,” he said. “My dad was a cop, and the arresting officer didn’t process me. He said ‘I’ll give you a second chance if you give someone else a second chance.’

“This is my way of giving someone else a second chance ...  And when you are in a position to change somebody’s life, will you do that? That’s all I want, because this cycle has to stop.”

Jack looked the man straight in the eye and said: “You have my word. And I will help you with anything you need to know, ’cuz you’re giving me a second chance to live. You are really helping me out. And I really, truly appreciate that.”

Jack ended up agreeing to restitution and 20 hours of community service, and, at Espinoza’s suggestion, writing a letter of reflection to include in the court file. Normally such a letter would go directly to the victim.

“This is an opportunity for you to see on paper, in your own words, how this impacted your life and what you would and would not do in the future,” she told Jack.

In an interview after the conference, Espinoza explained why she likes this program so much. She has participated in five or six conferences and said she plans to continue with it regardless of what she does after graduation from Stritch.

“The bottom line is that the offender gets a chance to become a productive member of society by doing what they said they would do,” she said. She noted how, in other conferences, deep-seated problems often were unearthed by the intense talking involved, problems that contributed to the crime but were not apparent on the surface. These are the kinds of things that would have little chance of being brought to the forefront in the normal criminal justice system, she said.

“It’s about caring and being part of the peacemaking process,” she said.  “So the concept of a second chance is awesome.”

Simply throwing someone in jail just encloses them with people whose ideas and lifestyles they don’t need to emulate, said Margaret Germanotta, 24, a junior political science major.

“And that doesn’t restore any justice to the victim either,” she said. “That’s one thing our system is not geared to. This directly addresses the victim’s needs. ... And the community members can offer a way out of where the offenders are headed.”

“I see so many people who would so benefit from this program,” said Shannon Corallo, a lawyer with the Wisconsin State Public Defender’s office who represented Jack in his community conference. She said she was saddened by people in the criminal justice system who are unwilling to participate and simply conclude that an offender must be a “bad person.”

“This shows compassion, and I just think it’s wonderful,” she said.

In instructions to facilitators, Lerman and Katzfey acknowledge that the program is “based upon principles that some people might consider to be contrary to the goals of the criminal justice system” and that “there are individuals who believe the conferencing process is not an appropriate use of criminal justice resources.”  They, therefore, implore facilitators and co-facilitators not to hesitate to ask questions, to seek help they may need from either of them, and to stress integrity, professionalism and courtesy.

“Enjoy yourself,” they add. “We appreciate your continued commitment. But nobody benefits if you, as a volunteer, are not enjoying yourself or gaining satisfaction.”

Sister Justine, who has been involved in the Community Conferencing Program for about two years, said her participation gives her immense satisfaction. She said she supports the program because, in most instances, she is simply not in favor of locking people up.

“People may say, ‘Oh, you bleeding heart,’ but I don’t think it’s an effective way of dealing with criminals or crime. Yes, there are those who are a threat to society and need to be removed. But when we see the recidivism rate, we know it’s not working. So why do we keep incarcerating people as the most standard way to deal with criminals? I saw this as a way to get potential felons out of the system before they ever get into it.”

She stressed that in community conferencing, the victim has to be “first and foremost.”

“I’ve been impressed by the willingness of victims to be the forgivers – and sometimes when it was just not warranted!” As with life in general, everything in community conferencing is not always rosy. And the attitudes of offenders with whom she has dealt  have run the gamut, from very contrite to almost amoral.

“I did a road rage case,” Sister Justine said, “and I felt neither party was sincere in admitting what happened. ... And I did a case where a teenager took her mother’s car and crashed it, and, again, I felt there was no sincerity.

“But you take the risk. You’re willing to do it for the sake of the ones who really will benefit from this.”

She then told the tale of a neighbors’ case in which a noise problem in a duplex escalated into a broken window, the police being called, potential violence, and great animosity between the adults involved. Through the conference, it was discovered that the root of the problem was really with the teenagers who lived there.

“One of the community members had a teenager and was able to feed into this very authentically,” Sister Justine said. After-school programs were arranged, one mother received parenting classes and job training, and the situation was successfully diffused.

“It really is about peacemaking,” she said. “For most of the people involved, you can see the change in attitude. On the part of the victim it goes from maybe a real feisty anger to, during the course of discussion, seeing that anger dissolve or be ameliorated. And the offender often picks up from the victim a feeling of what they are going through. You can just see it, with body language, with gestures.

“If we come at this from a Franciscan standpoint,” Sister Justine said, “we’re looking at the power of forgiveness – of asking for forgiveness. Those are very powerful movements one wouldn’t necessarily see coming out of the legal process.

“I’m very happy to be associated with this,” she said. “Not necessarily because you come out of every conference happy. You may come out wondering, saddened, frustrated.

“But in the long run, you still have hope.”