January 01, 2018

Making Peace, Restoring Trust

Hon. Darlene A. O’Brien

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The highly structured adversarial system of criminal justice in the United States inevitably creates winners and losers in a litigation contest. The process is often stressful and isolating.

Communication typically is from lawyer to lawyer. A criminal defendant is routinely prohibited from having contact with alleged victims, including family or friends. Apologies, no matter how sincere, are discouraged because they may be considered incriminating. The labels “defendant” or “juvenile delinquent,” while accurate, can lead to diminished self-worth and, with time, may become the lens through which defendants see themselves.

Are these simply the unavoidable consequences of due process?

Many judges begin their careers hoping to make a positive impact on the lives of those who come before them. But a sentencing judge’s comments, even coupled with incarceration, fines, and costs, are too often insufficient to affect fundamental behavior or change, as many criminal defendants return again and again.

Instead of an adversarial process, can principles of civil mediation—and what has become known as “restorative justice”—help us consider America’s diverse perspectives, find common ground, and restore confidence in the criminal justice system? Are there ways to adapt our system of justice to correspond to the parties’ and community’s perception of fairness?

Restorative justice is a concept that is taking hold in many courts but is difficult to describe succinctly. Generally, it strives to bring a deeper level of accountability to offenders, facilitate healing of victims, and restore well-being in the community. Prosecutors in some jurisdictions have victim liaisons trained in restorative justice to bring parties together in voluntary victim-offender conferences. By voicing their thoughts and feelings, those harmed often feel more involved in the process and their community, and experience emotional healing. Participating victims report reductions in their post-traumatic stress symptoms and desire for revenge, along with greater overall satisfaction in the justice process. Victim-offender conferences can help offenders develop empathy, greater capacity to change, and increased mindfulness. Importantly, they can reduce recidivism.

In 2013, my colleague Judge Timothy P. Connors received a grant from the Michigan Supreme Court to start a restorative justice Peacemaking Court, based on Native American practices of “circle” healing, to resolve civil disputes. Since then, this form of restorative justice has been successfully used to aid in resolving select domestic relations, probate, juvenile, and child protective cases. Trained community members typically organize and facilitate the process. The individuals involved in the matter are each treated with respect. They come together, sit in a circle, and speak in turn guided by someone proficient in peacemaking circles. This approach, which may sound deceptively simple, seems to work; the participants most frequently describe positive results.

Voluntary peacemaking practices also can be beneficial in some criminal cases. Before sentencing, a circle of persons affected by a crime could come together to make recommendations on what might be an appropriate resolution, and restitution agreements can be reached. Separate circles can be convened to support a victim dealing with the trauma of crime either before or after sentencing or to support the defendant and the defendant’s family. Through the circle process, the defendant must take ownership of the harmful acts done and, by doing so, develop self-realizations that can help avoid future transgressions. Anonymous surveys and other social science measures could provide more empirical data on the effectiveness and success of the process.

Both law and social work schools are beginning to adopt peacemaking curricula. Even children are learning the circle process in schools and camps. One local high school has a squad of students trained by the local Dispute Resolution Center in peacemaking. These high schoolers convene circles to settle controversies involving students. One student peacemaker, Myles McGuire, said it best in a recently filmed video, “Peacemaking in the Courts and Community” (http://washtenawtrialcourt.org/Peacemaking): “I don’t know why this is not being taught in schools, but this literally is the most essential thing that I could have ever been taught in school.”

As the Native American circle process becomes more integrated into our culture, our youth may come to expect greater healing through our justice system and reverse the trend reflected in a recent Harvard study that reported nearly half of all millennials believe the criminal justice system is unfair. Of course, not every case or defendant is suitable for this voluntary process. But for those that are, by turning to Native American traditions we may begin to restore a sense of community that is often lacking. Cook County, Illinois, is about to embark on such a process in the Lawndale area for emerging adult offenders aged 18–26 years in nonviolent and felony misdemeanor cases.

The American Bar Association Task Force on Building Public Trust in the American Justice System, in its report issued on January 25, 2017, acknowledged at the outset that “[l]istening to diverse perspectives and taking them seriously are essential to understanding a problem and considering solutions.” If we can learn from processes that encourage voluntary restorative dialogue, perhaps we will grow confidence in our system of justice one case at a time. As the ancient Chinese philosopher Lao Tzu observed, a journey of a thousand miles begins with a single step.

Hon. Darlene A. O’Brien

The author is a Washtenaw County, Michigan, trial court judge.