May 01, 2018
The Case for Restorative Justice
May 01, 2018
By A.J. Brady
The case for restorative justice is best exemplified in one of the more common crimes we prosecutors face—a residential burglary. A residential burglary is simply defined: it is breaking into an inhabited dwelling with the intent to commit a felony within, usually theft. In short, someone breaks into your house.
The impacts of a residential burglary on victims are incredibly complex. Nearly uniformly, victims feel a loss of security — someone has been in their home. This initial loss of security grows over time; they wonder whether they were targeted and how the thieves knew the perfect time to break into their house when they weren’t home. They think the thieves must have watched their home. And if these thieves were watching, when will they be back? This leads to perpetual fear of being retargeted.
The normal criminal justice system does not alleviate these feelings. A defendant once arrested is afforded a defense attorney at public expense. Victims often ask, “How come I don’t get a paid attorney?” This defense attorney has the right to make a vigorous defense case, including subpoenaing the victim and hiring investigators to talk to witnesses and visit the crime scene. Victims feel re-victimized by the defense attorney and investigator doing their jobs. If we obtain a conviction and proceed to sentencing, the defendant is advised to keep his eyes forward and talk to the judge; the victim may choose to make an impact statement, but it is usually to the back of the defendant’s head.
Over the years, on numerous occasions, I had a victim say something to the effect of, “Okay, so when do I get in the room with that ‘whipper-snapper’?” For years I had to respond, “We don’t do that.”
However, seeing this void created by crime and the desire of victims to meet face to face with their offenders is what led to my research and interest in the potential of restorative justice. At its core, restorative justice is a mindset that seeks to define a harm/problem, determine the problem’s roots, and repair the damage done to a victim or community. Often in restorative justice programs, victims and offenders participate in victim-offender dialogues, which are facilitated meetings where the offender must explain and the victim try to understand why a crime happened. The offender must try to understand the impact of the crime on the victim and potentially a broader community. At the conclusion of this dialogue, the victim, offender, and possibly community members, may come up with an agreement about how an offender can potentially repair the damage caused by their crime.
Restorative justice is broadly used in our school systems as an alternate way of dealing with suspensions and expulsions and in juvenile delinquency systems as an alternate approach to dealing with youthful offenses. However, in the American adult court system it is a rarity. In comparison, restorative justice is more widely used in courts in Canada, the UK, Germany and New Zealand. These court systems have also been the subject of research measuring the efficacy of restorative justice versus solely traditional justice approaches.
Broadly speaking, the foreign research looked into three main areas of potential impact: recidivism, satisfaction with the justice system, and restitution. On recidivism, the use of restorative justice has a positive impact. On victim satisfaction, those who go through a restorative justice process uniformly have much higher feelings of satisfaction with the overall justice system. Lastly, with regards to restitution, a defendant who goes through a restorative process is more likely to repay restitution than one who just goes through a traditional criminal justice process.
In 2015, I partnered with the Marin County Probation Department to bring restorative justice to the Marin County adult justice system. As part of this partnership, the Probation Department began offering restorative justice in post-judgment, probation cases and the District Attorney’s office created a misdemeanor diversion program using restorative justice programs. This pilot is still in its infancy, but the results are encouraging. Recently, after a face-to-face meeting, a victim forgave a large five-figure restitution amount after understanding the defendant's background and after the defendant went through appropriate substance abuse treatment. To this victim, assurances about future harm were much more important than the monetary loss.
So where do we as a County go from here? If we accept the ample evidence that restorative justice can provide victims with a greater sense of satisfaction and that offenders are more invested and accountable with this process, then the answer is with the large middle ground: felonies.
In Canada, restorative justice exits as a parallel sentencing process. If a person is convicted, the case is both referred to a traditional probation department for a presentence report and to a restorative justice coordinator for recommendations to the judge. The restorative justice coordinator sees if the victim and offender wish to go through a restorative process. If the victim and offender meet and come up with an agreement, those non-binding terms are forwarded to the judge for consideration at sentencing along with a probation department report detailing the background and prospects of the defendant.
Such a process is remarkably more informed than a current felony sentencing here in the United States. Unfortunately, as it stands now, judicial officers and district attorneys often grasp at phrases from a probation report or at court demeanor in an attempt to figure out whether a defendant is remorseful. With an additional restorative report, a judicial officer can have confidence that at least the victim has been heard, that they are providing input into the process, and that effort has been put into the recommendations. While of course the parties must argue for what is in the best interests of their clients, and the judge has a duty to make sure there is some level of consistency in sentencing, restorative sentencing reports inject more confidence that the justice system is working and is responsive to the persons most profoundly affected by the results.
This face-to-face accountability is what the modern criminal justice system lacks. It is only the ‘whipper-snappers’ who can truly alleviate burglary victims’ feelings of insecurity. Only the ‘whipper-snappers’ can tell the victim that they were not targeted, but simply live in an affluent neighborhood that has a pattern of leaving its doors or windows open. Only the ‘whipper-snappers’ can explain that no one was watching the victim, they walked up and down the street ringing doorbells until they found one where no one was home and then tried the door or a rear sliding door. Lastly, only the ‘whipper-snappers’ can truly explain to a victim that they are more than a 'whipper-snapper,' that they are a complicated individual, perhaps down on their luck or struggling with sobriety, and that they are deeply remorseful for all the pain they have caused the victim.
Restorative justice should play an even larger role in our criminal justice system in the upcoming years. Providing peace of mind to victims while reducing recidivism is how we should better serve our communities. A robust criminal justice system here in Marin that embraces restorative justice will provide progressive public safety consistent with our local values.
A.J. Brady is a Marin County Deputy District Attorney and candidate for District Attorney in the June 2018 election. A.J. has worked on many progressive criminal justice policy projects, such as Treatment-in-Lieu-of-Incarceration for chronic alcoholics, alternative sentencing for veterans, and implementation of adult restorative justice. For more info visit: