“…There is not a single moral offence which does not, directly or indirectly, affect many others besides the actual offender. Hence, whether an individual is good or bad is not merely his own concern, but really the concern of the whole community, nay, of the whole world.”
-Mahatma Gandhi, as quoted by Angela McCormick Bisig,
Jefferson District Court judge.
Marie Stewart is a bright, lovely, and thoughtful woman. At 95 years old, the mother of five counts great-great-grandchildren in her ranks. She refers to all of them collectively as her grandkids.
“I’ve got about 60-something grandkids,” said Stewart, while sitting in the living room of her home in the California neighborhood of Louisville. “They think about me all the time. I’ve got a family [so big] they’d close Chickasaw Park.”
Stewart lives with her son, Sylvester, an artist and a jazz lover. There are several artists in the Stewarts’ extensive family and an impressive number of service members, Sylvester and his father among them. The walls of their home are lined with photographs and Stewart, needless to say, could go on about every one.
The Stewarts are gracious people who understand the value of community. They also understand how that value sometimes comes at a cost. After leaving a West End restaurant last year, Stewart realized she’d left her purse by the table. Her Christmas money was in her wallet. By the time she returned to the restaurant, her purse was gone. Surveillance cameras recorded three young men leaving the restaurant, one of them with the bag in tow. Two of the youths were identified, caught, and charged with theft by unlawful taking. The other was never apprehended.
A young man, who will be referred to hereafter as Chris Coleman, didn’t take the purse but was charged as an accessory to the crime. The Jefferson County Attorney’s Office identified Coleman as meeting the criteria for participation in a new program for juvenile offenders. At his arraignment, Coleman was offered a unique opportunity—one that Sylvester believes was divine intervention.
“The devil’s work is clumsy and stupid and God’s work is just smooth,” said Sylvester. “[Coleman] was in trouble. He didn’t know how he got into it. And he was out of it before he knew it.”
Coleman was told that his case could be taken out of juvenile court and handed over to a newly commissioned nonprofit organization called Restorative Justice Louisville. If the Stewarts agreed to participate in the program, Coleman would engage in several face-to-face conversations with them, mediated by two trained facilitators from RJL. The objectives of the meetings would be to discuss the crime, allow the Stewarts to describe how they were affected by it and allow Coleman an opportunity to accept responsibility for his actions and to understand the damage caused to the individuals involved and the community as a whole. Following that, the parties would work to reach an agreement about what measures could amend the damage.
Coleman agreed to participate, as did Stewart. She didn’t want to see the boy locked up and hoped he could be given another chance.
“He seemed like the kind of kid that would listen to you,” said Stewart. “All he needed was somebody to talk to him. I really believe he’s gonna be alright. He did the right thing.”
This was one of the first cases handed over to RJL by the Jefferson District Courts. All parties involved agree that it was a success. Coleman accepted responsibility for his actions and apologized for the hurt his actions caused. He and his family offered to pay back the money from Stewart’s purse; she declined. Instead, the terms Coleman and Stewart agreed on for restitution were as follows: Coleman was to finish high school, maintain his job while doing so, complete 90 hours of community service, and join a mentoring program called Men Building Men. Coleman has done all of these and is still involved in his mentoring program, where he has become a role model for the other participants.
At the conclusion of their meetings, Stewart and Coleman embraced one another, both of them crying.
“You have another grandma now,” Stewart told Coleman.
Two people were charged in the theft of Stewart’s purse: one who was eligible for participation in restorative justice and one who wasn’t. Consider what’s happened to these two parties since the case was initially processed.
One individual was charged as an adult and received five years of probation for the crime. He has been labeled a criminal and has a rap sheet now. Should he get into trouble again, he could serve all five of those years in jail, at a cost to the taxpayers of about $130,000. He and the Stewarts have never discussed what happened.
Coleman was not convicted of a crime. His case was taken out of the courts, lessening the prosecutorial burden on the justice system as well as the financial burden to the taxpayers. Coleman – who lost his father years ago – entered into a mentoring program and was given the opportunity to clearly understand the impact of his actions on his community and to discuss that impact with dignity and responsibility. He also got another grandmother. For her part, Stewart was given a stake in repairing the harm that was done to her. She was given a voice with which she effectively said, ‘I forgive you. Think about the repercussions of your actions. Please don’t hurt people again.’
One of these scenarios seems more immediately effective in the growth of a thoughtful, sustainable community than the other.
Back in their living room, the Stewarts and I discussed crime in Louisville and some of the elements at the root of the problem, like a lack of good role models in the community and unresolved conflicts escalating into more and greater conflicts. On this point, Sylvester had a suggestion for the community.
“[Instead of] talking about curing violence and crime, they need to cure the mind,” said Sylvester.
“How do you do that?” I asked.
“Talkin,’” said Sylvester.
“You talk to them,” said Stewart. “That’s all. Tell them what you think about it, what’s good, and what’s bad for them. Some of his cousins or his friends he was with, they might see what he’s doing and turn around and do the same thing. He’s doin’ something good. Maybe they’ll get tired of the life they’re living and change. But they’re going to have to do it themselves.”
Stewart’s notions – the importance of dialogue, assumption of responsibility, and greater community awareness through cooperation and personal accountability – are at the core of the restorative justice model. When individuals and their community are able to participate directly in a justice system, not only are the parties involved in and affected by a crime given an opportunity to repair the harm of that crime together, but the community as a whole is given a stake in establishing and maintaining justice actively, not passively.
In traditional criminal proceedings, attorneys act as proxy representatives for the parties involved in and affected by a crime. Lawyers speak on behalf of the victim and the accused. If a case goes to a juried trial, the parties might be asked to testify. But on the whole, in day-to-day legal processing, the actual individuals with the greatest stakes in criminal proceedings are rarely heard from in any meaningful detail.
Our criminal justice system is framed with the burden of proof laid on the prosecution, who is tasked with establishing the guilt of the accused beyond a reasonable doubt. In equal and opposite measure, the job of the defense is, essentially, establishing doubt and avoiding accountability. It’s an inherently paradoxical system because it relies on the assumption of innocence. It’s an interesting and important paradox though – one that favors the accused of a crime. It’s evidence-based, logical, and extremely useful, especially in cases when the accused is actually innocent. Viewed within the long arc of history, ours has shown itself to be a good legal system. However, as most anyone who works within that system will tell you, it’s still imperfect.
One of its imperfections – which is being addressed in an increasing number of justice systems in the United States, ours included – is the way those affected by a crime, the victim and the offender, are inherently abstracted by the process.
Libby Mills, the coordinator and a trained facilitator for RJL, is one of the founding participants in the movement’s recent successes and a longtime participant in the juvenile justice system.
“The traditional justice system is characterized as being retributive, i.e., ‘retribution,’” said Mills. “It’s modeled after the king’s rule in England. If you commit an offense, you’ve offended the State. So documents are worded like, ‘the Commonwealth of Kentucky v. John Doe.’ They ask: ‘Who did it? Who needs to be punished? How are they going to be punished?’ And the State decides that under the auspices of the court. With restorative justice, you ask: ‘What harm was done? Who’s responsible for repairing that harm? And how is the harm to be repaired?’”
The family group conference model used by RJL is a completely voluntary, victim-centered approach. It hinges on an assumption that, while the traditional justice system operates implicitly in the interest of individuals and the community, victims of a crime have important needs that often go unmet – namely the need to be heard and understood, followed by a meaningful degree of personal closure.
Much of the same can be said of an offender who, in traditional proceedings, is expected to avoid the admission of guilt at all costs. Think here of the Fifth Amendment, which states, in part, that “No person…shall be compelled in any criminal case to be a witness against himself.” While this is a very important and useful concept, it implicitly anticipates the defendant’s silence. Alternatively, the restorative justice model provides a conversational space in which offenders are expected to verbalize their actions and to contemplate, discuss, and agree upon the contour of their accountability.
This is a fascinating part of the restorative justice process that trades on the seemingly self-evident power that lies in the acts of verbalization and discourse. When people are given the opportunity – in a nonhostile, collaborative environment – to discuss a grievance face-to-face, and when they are asked to reconstruct the elements of that grievance, responsibility is identified and reconciliation is much more easily attained. Inversely, retribution becomes an afterthought or disappears entirely.
“We start a conversation with them about what needs to be done to repair the harm,” said Mills. “The victim may [initially] want restitution. If someone has had damage done, and it costs $500 to fix it, they may want the $500. I’ve not had a victim ask for restitution yet though. I have not had anybody ask for money yet.”
Mills mentioned a recent case in which a juvenile vandalized a storefront to the tune of about $1,500. Permission was granted by the Jefferson County Attorney’s Office for the case to be moved to RJL. The juvenile offender met with the store owner and RJL facilitators. After the two had discussed the impact of the crime, when it was time to begin making arrangements for restitution, the victim said he didn’t want to be given money for the damages. Instead, the store owner penned a legally binding agreement.
The young man would stay in school, get a job, and put $50 per month into a savings account until that account reached $1,500. For the terms of the agreement to be complete, the young man must graduate from high school and use the money in the savings account to pay for college. If he does not use the money for tuition, it will be given to the store owner.
A 17-year-old kid and the person whose property he destroyed – his neighbor – came up with that agreement between the two of them in a conversation that the Jefferson District Court has deemed an appropriate execution of the law. RJL will monitor this agreement until it is completed in full. If the agreement is not fulfilled, the case will automatically be returned to District Court and handled like any other new case.
Tom Williams is a lawyer with the law firm Stoll Keenon Ogden and is a former president of the Kentucky Bar Association. Along with Bisig, Mills, County Attorney Mike O’Connell, and many other local legal professionals, Williams was instrumental in introducing restorative justice practices into the juvenile courts.
“This is not designed to replace the system,” said Williams. “It’s an additional tool in the tool belt. It’s a compassionate way to address people. I think it potentially gets to the root causes of the offending. It’s not an either/or, it’s a both/and approach. The answer is not to let go of accountability. The answer is to allow accountability to empower the offender to change their ways. Under the current system – and it’s no one’s fault – you go down to 6th and Jefferson [Louisville City Hall], you see a judge in a black robe who wasn’t connected to the offense, and you’re sentenced. You go home and either serve your sentence or not, depending on the circumstances. There’s just no connection between what you’ve done and the people that you’ve hurt. The traditional system is about labeling and kind of ostracizing people. Not intentionally, but the way that it works is that you label them an offender and you place them in jail, away [from the community]. Restorative justice is about figuring out ways to reincorporate people back into the community.”
Williams sees great potential for the restorative justice model to grow and develop throughout the Louisville community.
“A big idea is to push the justice issues out into the community where they arose,” said Williams. “More things are criminalized than need to be. A lot of things can be dealt with and facilitated in neighborhoods. And accountability can be created in neighborhoods. That’s not to say that there aren’t a lot of cases – that there won’t always be a lot of cases – that need to be dealt with by the system. Frankly, though, the community has been disempowered. The people in the community don’t have the skills, training, ability, infrastructure to help with this kind of issue because, right now, the only game in town is the traditional system. Our hope is that we can create this infrastructure where we can train facilitators and the community around these principles and then people in the neighborhoods will facilitate and be peacemakers within their community. And when you’re working with kids, nobody’s going to argue that it’s not worth the effort.”
-Joe Manning
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Thanks for this in-depth look at the restorative justice process. Great to get this whole story. And thanks to all who have committed their time and energy to this process which has been so incredibly successful in other parts of the world.