Justice, Not Retribution: “The Emphasis on Suffering Isn’t Getting Us Anywhere”

By Glen Martin

Initially the story seemed like something straight out of A Clockwork Orange: Sasha Fleischman, who as an agender youth doesn’t identify as either male or female, was dozing on a municipal Oakland bus. Nearby, three adolescent boys had been laughing mockingly, and then one touched a lighter to Sasha’s skirt. The garment exploded in flame, Sasha screamed and struggled until other passengers were able to extinguish the blaze. Sasha’s legs were a welter of second-and-third degree burns, which would require several painful operations.

But the boy who set the skirt ablaze was hardly the white, working-class, sociopathic London “droog” of Anthony Burgess’ dystopian novel. He was Richard Thomas, a 16-year-old African American who lived in East Oakland, and his story was not atypical for his neighborhood, as an article by Dashka Slater in The New York Times Magazine makes clear. One aunt had been shot and killed in a drive-by; another had been murdered by her boyfriend. Three of his childhood buddies had also been killed, including his best friend, who had been shot to death in Oakland shortly after the two served time in a juvenile group home for an altercation with some skateboarders.

Richard’s record at Oakland High School was spotty. At times he seemed a total screw-up, at others he tried to meet or exceed the mark, at one point volunteering to enroll in an intervention program for chronically truant kids. The teen told the school’s compliance officer, Kaprice Wilson: “I want you to help me like you help them. Because I’ve been to a lot of schools, and I’ve been in trouble, but I’m really not a bad kid.” The bus incident, in his eyes, was a prank gone awfully awry.

The Alameda County District Attorney’s office didn’t see it that way, charging him as an adult with two felonies enhanced with hate-crime clauses—meaning he could face life in prison.

“I know he hurt me. He did something that’s really dan­ger­ous and stu­pid. But then again, he’s a 16-year-old kid, and 16-year-old kids are kind of dumb.”

Then something unexpected happened; calls for leniency began coming in from parties that might have been expected to favor rigorous prosecution, including the National Center for Lesbian Rights and the Transgender Law Center. Sasha’s parents stated they wanted Richard tried as a juvenile, and when they met Richard’s mom, Jasmine Jackson, the two mothers hugged and cried together. Even Sasha expressed ambivalence rather than a thirst for vengeance.

“I know he hurt me. He did something that’s really dangerous and stupid,” Sasha said. “But then again, he’s a 16-year-old kid, and 16-year-old kids are kind of dumb. It’s really hard to know what I want for him.”

Ultimately, Richard took a plea deal for a seven-year sentence. “I wish it had turned out differently for Richard,” acknowleged Sasha’s mom, Debbie Fleischman. “We got Sasha back. But poor Jasmine. She lost her son for years.”

Throughout this tale there is a pervading sense of opportunity lost. Everyone wanted restitution, but seemingly no one—save the Alameda County District Attorney, perhaps—wanted unequivocal punishment. In the end, of course, that’s what Richard Thomas got.

Given the parameters of the current criminal justice system, perhaps it couldn’t have been different. That’s why many reformists are calling for an alternative system, particularly for juveniles.

There’s no need to invent one out of whole cloth; it already exists. “Restorative justice” is rapidly gaining adherents in East Bay schools, and pressure is building to apply it to the larger juvenile justice system. It emphasizes dialogue between victims and perpetrators, an acknowledgement of transgressions, requests for forgiveness, and the determination of recompense and sanctions. The idea is to make those who suffered whole, while keeping youthful offenders connected to the community and, if possible, out of juvenile detention or prison.

Currently, restorative justice is most commonly applied as an alternative to zero tolerance (the practice of kicking kids out of school for specific infractions.) After many years as standard educational policy, it’s clear that zero tolerance is better on paper than in practice. Sure, it identifies and culls “disruptive” students from the schools. But that rubric is applied so broadly it can sweep up kids charged with a vigorous pushing match or a tagging incident along with genuine sexual predators and vicious bullies. You break the rules, you’re suspended—or expelled. That’s it. No exceptions.

And for that matter, what about the kids who do commit more serious offenses? Do we just consign them to the juvenile justice system, which is long on juveniles but painfully short of justice?  Do we warehouse them until we’re ready to kick them out on the streets, where they can apply the refined illicit skills they learned in Juvie, ultimately matriculating to prison?

Well, yes. That’s just what we do.

“In a very real sense, zero tolerance is about protecting adults, not helping kids,” says Tony Smith, former superintendent of the Oakland Unified School District, current executive director of the W. Clement and Jessie V. Stone Foundation (and erstwhile Cal Bears football team captain and NFL lineman who later earned a Ph.D. in education from Cal). “It’s super easy procedurally: Oh, he or she did this, or that, so they’re out. You can essentially go by a checklist—you aren’t required to investigate, or understand context. You don’t have to consider, for example, that a 9-year-old girl carries a knife in her backpack because she feels she needs it for protection in the areas she has to walk through to get to school—areas you or I wouldn’t go under any circumstances.”

Enter restorative justice. It’s not really new, explains Fania Davis, executive director of Restorative Justice for Oakland Youth (RJOY).  Back in the 1970s, an Ontario, Canada police officer handled a case involving some youths charged with vandalism. He didn’t believe the offenders were hardened criminals, nor did he think Canadian society would best be served by giving them rap sheets. So he prevailed upon a judge to institute what is now recognized as a restorative justice process: The kids were required to confront the person whose property they had damaged, apologize, ask what was required for restitution, and make good on the request.

“We ask people to re­spond to wrong­do­ing in ways that bring about heal­ing….The urge to re­tali­ate, to take an eye for an eye, is con­di­tioned.”

Since then, restorative justice has spread widely in the commonwealth countries, particularly in Australia and New Zealand, where it is often applied in cases involving Aboriginal and Maori youth.

And it’s growing here as well. UC Berkeley’s Restorative Justice Center has trained more than 400 students and staff in the practice, and placed more than 75 students in internships and mentorships. In the past three years, Oakland’s RJOY and allied local groups have diverted an average of 100 cases a year from the legal system to restorative justice programs. Not all of the cases have concerned minor offenses, says Davis; some have involved assault, arson or robbery.

“What’s really amazing—and inspiring—is the deep support of the program by people who were harmed in these cases,” says Davis. “There have been multiple studies concluding that most people don’t necessarily want retribution and incarceration for youthful offenders. They want them to finish school, get jobs—to turn their lives around. Our work confirms that research. We ask people to respond to wrongdoing in ways that bring about healing rather than add to the harm that has already occurred. The urge to retaliate, to take an eye for an eye, is conditioned. I think the willingness to participate in social justice programs show people want to break out of that cultural conditioning. They want an alternative.”

Restorative justice typically employs “circles”: groups that include “those who were harmed and those who harmed.” (It should be noted social justice advocates prefer such lengthy terminology as opposed to “victim” and “perpetrator,” which they say embody associations that can hobble open discourse. For brevity, this article uses the standard nomenclature.)

Trained facilitators help guide discussion. In a typical circle, the victim and the perpetrator engage each other, the perpetrator acknowledges his or her actions, apologizes, and asks how appropriate redress can be made. Ultimately, an agreement is reached between the two.

Smith maintains that anyone who thinks violators are let off easy by such an approach is mistaken. He says he has seen tough kids squirm, fidget and well up with tears when required to confront their victims one-on-one, openly acknowledge their trespasses and ask forgiveness.

“These are kids who aren’t fazed by court, by jail, by juvenile detention,” says Smith, “but they can’t marshal any of their usual defenses for this. It gets through to them. It also empowers the person who was harmed to a degree that isn’t afforded by the legal system.”

Julie Shackford-Bradley, coordinator of the Restorative Justice Center at UC Berkeley and a lecturer at Cal’s International and Area Studies Academic Program, says restorative justice has applications beyond the immediate redressing of threats to human safety and property. She echoes the idea that it can be used to change the “retributive” mores that now dominate national culture. Accordingly, the center trains “practitioners” to facilitate different encounters: Some circles focus on forging personal relationships and strengthening community ties; others deal with grief and healing—and of course, harm restitution.

And as far as education goes, inner-city primary and secondary schools aren’t the only places that could benefit from the restorative justice approach, says Shackford-Bradley. So could universities—including Cal.

 “It’s highly appropriate for academic misconduct, including plagiarism and cheating. The university is not doing that at this point, but it should,” she says. For more egregious violations of campus policies, the use of restorative justice could allow resolution of an issue without expelling the student: “Expulsion can literally destroy a student’s future, and that’s a heavy price to pay for a single mistake.”

Further, says Shackford-Bradley, both students and faculty could derive real benefits by jointly exploring the damage to individuals and academe engendered by cheating, plagiarism and falsifying data.  A “harm circle” on that topic could be an opportunity for learning and teaching, one that would have special resonance for students because it would impose real sanctions while simultaneously offering redemption.

“But even if and when we get administrative sanction, we still have a lot of work to do with the faculty,” Shackford-Bradley says. “Many of them, frankly, are jaded and skeptical about cheating. There’s a lot of mistrust.”

Still, restorative justice has gained a toehold at Berkeley—in the university student co-ops. Katie Sadler, an experience manager at the co-ops (which support 1,300 students), says the system shows great promise.

“I used to work in the resident halls at the University of Vermont, and it was used there,” says Sadler. “It worked, and I think it could work here. So right now our effort is on getting the students to buy in. We have two training sessions for co-op managers coming up (in conjunction with the Center for Restorative Justice), and I think quite a few people are excited about it.”

As Sadler sees it, effective restorative justice is at least as much preventive as it is reactive: By building empathy among residents through community circles, “you can establish agreements on community life that people want to support. And the circle constitutes a format to deal with violations when they do occur. A (harm circle) can be convened to discuss the details and determine restorative sanctions that get to the heart of the harm and make it right.”

While restorative justice is in the rosily optimistic expansion phase in the United States, the perspective is a bit more gimlet-eyed in Australia, where it has been around for more than 20 years. The academic literature Down Under is replete with articles that dispassionately probe the limits of the process. In a contribution to a handbook on restorative justice, Kathleen Daly, a professor at the School of Criminology and Criminal Justice at Brisbane’s Queensland University, notes:

… (Restorative justice) assumes that victims can be generous to those who have harmed them, that offenders can be apologetic and contrite for their behavior, that their respective “communities of care” can take an active role of support and assistance, and that a facilitator can guide rational discussion and encourage consensual decision-making between parties with antagonistic interests. (But) any one of these elements may be missing, and thus potentially weaken an RJ process….

How ef­fect­ive is res­tor­at­ive justice? “We should ex­pect mod­est res­ults, not the nir­vana story…”

Daly cites studies that highlight specific shortcomings of restorative justice: There is no single widely-accepted definition; fact-finding is difficult to impossible because restorative justice emphasizes ‘solutions’ above all else; the gap between goals and results can be profound; it’s easier to achieve fairness than true equity; sincere apologies can be difficult to obtain or even evaluate; recovery and resolution from the victim’s standpoint depends on the degree of trauma suffered.

In short, concludes Daly, “…We should expect modest results, not the nirvana story of RJ.”

Still, if life is hard, justice in any form is harder. It is a chimera, something aspired to, but seldom if ever achieved in perfect form. Daly emphasizes this, quoting Derrida. Justice, the great Deconstructionist wrote, is an “experience of the impossible, an ideal, an aspiration, which is supremely important and worth striving for constantly and tirelessly.”

For Smith, it is not so much a matter of attaining a Platonic ideal of Justice:  The goal is a working model that functions in the grubby and inequitable real world. That means a model that doesn’t automatically chuck kids on the trash heap for a screw-up. It’s better for everyone, he observes, if young offenders can be saved.

“The current emphasis is on suffering—‘Did they suffer enough?’ That’s not really getting us anywhere,” Smith says. “How much suffering do we want them to go through? What is the appropriate gauge? Look, there are obviously lines that have to drawn. If a kid comes to school with a loaded gun, there must be a legal proceeding. But a restorative justice process can operate on an adjacent track with the legal process. There’s still room for it. That way, the kid doesn’t just disappear from the community. That way, you still have a chance of—restoring him.”

Shackford-Bradley openly acknowledges the impediments that restorative justice faces in a society deeply invested in retribution.

“But I think we’d make real headway if people looked back on their own lives,” she says. “I think there are plenty of Cal alumni who might have benefited from restorative justice when they were young, when they may have made mistakes, when things went wrong for them. We’d like to hear from them.”

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“Still, restorative justice has gained a toehold at Berkeley—in the university student co-ops.” This is misleading—the Berkeley Student Cooperative is not affiliated with UC Berkeley and many of its members are not Berkeley students.
In the UC Berkeley (student co-ops) or wherever restorative justice is practised it should be evaluated versus years of imprisonment…which person comes out changed and able to rejoin society with any degree of long term success?? Hats off to those opting for the restorative routes rather than punitive.
I grew up in the Bay Area because of the federal government’s American Indian Relocation (Reservation Depopulation) Programs; Cal ’82 (BIA and Vietnam GI Bill funded). “Restorative justice” has been an integral part of American Indian Tribes’ traditional dispute resolution since time immemorial (see “The Duckwater Shoshone Drug Court, 1997-2000: Melding Traditional Dispute Resolution with Due Process,” 26-2 American Indian Law Review 261-286 (2002)). In my 27 years as a law-trained and tradition knowledgable Judge for my Tribe and many others, including my time as a National Judicial Educator, I’ve always wondered why systems that worked for thousands of years haven’t been implemented whereas when non-natives suggest and try something as a whim, it is readily copied and implemented. In 1906, Roscoe Pound gave a speech that “punishment seems to have greater interest for the lay mind than the civil remedies of prevention and compensation … Revenge and its modern outgrowth, punishment, belong to the past of legal history” (The Causes of Popular Dissatisfaction with the Administration of Justice, 40 Am. L. Rev. 729, 730 (1906), reprinted in 8 Baylor L. Rev. 1, 7 (1956)). Look to Tribes for answers.
I agree with EagleEye Johnny. The Iroquois Confederacy, who were the original consultants on democracy for the country’s founders, taught this kind of ‘dispute resolution’ or restorative justice. The choice for punishment and vengeance was apparently a choice taken by the colonists, along with many others that expanded the rights of some and severely limited those of others. We might look at the institution of slavery for their motivation. Punishment, suffering and the death penalty are just another part of that legacy.
Following my many years as a tribal drug court Judge, in 2001, Marin County hired me to help them design an Adult Drug Court (ADC). That ADC followed the 10 Key Components of Drug Courts (a guide to success). An evaluator from Cal concluded the highly Court supervised, intensive out-patient, program with Superior Court Judge Terry Boren and I, as the Drug Court Coordinator (2001-2006), very successful and a model to reproduce. The National Association of Drug Court Professionals (I sit on the Board of Directors) (www.nadcp.org) also has available free on-line the Adult Drug Court Best Practice Standards. In addition to many Tribes melding the 10 Key Components with traditional dispute resolution techniques and traditional treatment methods, many state “collaborative courts” have spun off the original Drug Court model: mental health courts, veterans treatment courts, DWI/DUI courts, etc.

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