RESTORATIVE JUSTICE IN THE MODERN WORLD: Kamryn Zachek HOW AN ABORIGINAL PERSPECTIVE CAN AMELIORATE THE U.S. CRIMINAL JUSTICE SYSTEM

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Restorative Justice in the Modern World: How an Aboriginal Perspective Can Ameliorate the U.S. Criminal Justice System

Kamryn Zachek

Edited by Erisa Castillo

The dominant criminal justice theory in the U.S. is based on punitive action but the exponential growth in enmity between ethnic communities and egregious incarceration rates begs the following question: is it appropriate in the modern era for retribution to be the only acceptable form of justice? A philosophy based in aboriginal law is gaining popularity in U.S. legal systems, its approach to criminal justice being adversarial to the system currently in place in the U.S. This, in turn, has prompted debates as to whether it is an adequate response to crime. Restorative justice sees the goal of criminal proceedings through a rehabilitative lens with its broader objective being the construction of strong, unified communities. As restorative justice becomes a more common term in the courtroom (most frequently in cases dealing with historic racial and ethnic injustices), the process and its programs face scrutiny as the legacy of retributive justice in the U.S. echoes in the minds of the public as being the only true “American way”. This attitude was one of the more common reactions of the public garnered in the case of the destruction of the Obelisk in Santa Fe, New Mexico (2020) when District Court Attorney Mary Carmack-Altwies referred the defendants to participate in a restorative justice process. The eye-for-an-eye philosophy almost exclusively exhibited in U.S. criminal justice proceedings is not always an appropriate response to conflict, especially in cases rooted in historical injustice in which no relational progress is made, both parties continue to feel wronged, and everyone is missing an eye. A restorative perspective proposes a solution to this problem and should be recognized for its ability to compensate for the shortcomings of retributive justice in the U.S.

I. INTRODUCTION

The idea that the only acceptable response to criminal violation is a punishment that brings about equal pain to the offender is a perspective that is prevalent in criminal justice proceedings in Western culture.1 This retaliatory reaction to criminal offense is not the only path to achieving justice, rather it represents one end of an interpretive scale on which the concept of justice lies. Justice and retribution are often used synonymously in the Western world, which has made it so any response to criminal violations that do not center on punishment are not considered an adequate response to crime. This perspective consequently limits the ability of the criminal reform systems to achieve rehabilitation of offenders or affected communities. Restorative practices are rooted deeply in aboriginal law, the tribe most frequently associated with this theory being the Navajo of North America.2 The goals of these practices reflect the tribe’s spiritual outlook on conflict that is a major reason for its continual rejection by Western culture. The overarching goal of restorative justice practices is the healing of victims, offenders, and communities through the exchange of perspectives and a deeper look into what caused the offense to take place.3 How this is achieved is unique to each situation and requires intimate analysis of all variables and a detailed plan of approach to ensure progress is achieved.4 The scope of this ideology and its vessels is broad, and resolution is typically less immediate than seen with retributive action. For many, this can dilute the appeal of the approach to those who are comfortable with the physical consequentialism of the current criminal reform system. The restorative theory is not meant to replace retributive action, but rather complement it so that a more fruitful and permanent rehabilitation is achieved.5 The idea that an eye-for-an-eye approach to criminal justice is the only way to approach conflict is a mindset cemented over generations of political campaigns in the U.S. centered on being tough on crime. This perspective is not an accurate reflection of the younger generation’s interest in resolution of generational wrongdoings and the strengthening of their respective communities.6 The modern era of political activism has shined a spotlight on the deteriorating relationships between ethnic communities, an issue encapsulated perfectly within the case of the Santa Fe Obelisk. As the systematic issues of a retributive action centric criminal justice system become harder to ignore, the complete rejection of restorative justice due to its divergence from Western systems is no longer an acceptable justification.

II. THE ORIGIN OF RESTORATIVE JUSTICE

1 See, e.g., (AUTHOR),CRITICAL ISSUES IN RESTORATIVE JUSTICE 23-25 (H. Zehr & B. Toews ed., Lynne Rienner) (2010)

2 See 2. DENNIS SULLIVAN &LARRY TIFFT, RESTORATIVE JUSTICE :HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 17-20(Willow Tree Press 2nd) (2005)

3 See DENNIS SULLIVAN &LARRY TIFFT, RESTORATIVE JUSTICE :HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 6(Willow Tree Press 2nd) (2005) 4 See D Roche, Accountability in Restorative Justice, 188-202 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 5 See, e.g., HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 19(Good Books Revised and updated) (2014)

6 See 2. DENNIS SULLIVAN &LARRY TIFFT, RESTORATIVE JUSTICE :HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 17-20(Willow Tree Press 2nd) (2005)

The use of restorative justice can be traced back to various indigenous tribes across the world, but the tribe attributed with the birth of these processes is Navajo people of North America.7 Navajo culture is centered on the commensurate value of all life, a belief that is translated into all factions of their being. This abbreviated ideology is one birthed from their spirituality and shaped by their historical interactions with Western European culture.8 The Western criminal justice process is reliant on a powerful hierarchical structure reflective of the messages conveyed through retributive practices. At every stage in the Western process, the single most important influence on the direction in which the case progresses is who is in power. In a previous section it was discussed how in the modern criminal justice structure of the Western world, those most directly influenced by the conflict forfeit much of their influence to the system which is the source of many objections to the retributive approach. Navajo beliefs reject the foundations of the modern system by taking the vertical structure of a hierarchy and rearranging it into a linear model where the power and influence over the direction of the situation is distributed amongst all those involved equally.9 The conference model has been adapted from “circles”, a process the Navajo developed to bring all parties involved onto equal footing, directly adversarial to the physical structure of a trial by jury.10 Circles often involved a physical item which signified who could speak that would be passed around the circle so everyone would have equal opportunity to contribute to the conversation.11 This approach to justice was meant to convey that no matter the role a person played in the conflict, their personal experience was not more or less valuable than any other. Modern courts were introduced to the Navajo Nation in 1892 forming the Navajo Court of Indian Offenses which blended customary Navajo traditions with modern court procedures conducted by a judge.12 This justice system would undergo revision in 1959 and become the Courts of the Navajo Nation.13 This court system would dismiss much of the Navajo traditions which were preserved within the Navajo Court of Indian Offenses and replace it with a system that mirrored standard state court proceedings.14 After the establishment of the Court of Indian Offenses, the germination of what is now identified as a restorative approach to criminal justice would lose traction and would not be seen in the modern world for nearly 40 years.15 The legitimacy of restorative processes as a response to crime has been questioned on the basis that it lacks the structure perceived as necessary to be an effective criminal justice system.16 A major reason restorative justice took so long to become part of the modern criminal justice vocabulary was its adaptive structure, the transition from theoretical

7 See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 175 (1994). 8 See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 177 (1994). 9 See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 180 (1994).

10 Cf. BONNIE PRICE LOFTON,CRITICAL ISSUES IN RESTORATIVE JUSTICE 377 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 11 See D Roche, Accountability in Restorative Justice, 66 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 12 Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 10 (1994). 13 Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 186 (1994). 14 S D Roche, Accountability in Restorative Justice, 66 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004)

15 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 18(Good Books Revised and updated) (2014) 16 See Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. REV. 180 (1994). The “lack of structure and proper punishment” was one of the centric arguments for re-structuring the Court of Indian Offenses and the dismantling of Native court systems across North America in the 1940’s-1950’s.

to material was a jump many national governments saw as impractical.17 The first time we see restorative justice in a modern context is New Zealand in the 1989 Children, Young Persons, and Their Families Act where the family conference model is first introduced.18 Similarly to the Court of Indian Offenses, the Māori of New Zealand operated under a government system that was less formal than national systems and reflected their peaceful way of life.19 Their tribal government was accredited for influencing the establishment of the restorative aspects of the aforementioned Act, giving it a name in the modern criminal justice system for the first time.20 The full name of the program established by this act is Family Group Conferencing, a conference model conceived to combat international data that supported that many state systems led to greater violent crime rates amongst youth.21 After the implementation of this program, the national government of New Zealand saw a significant reduction in youth crime rates and positive trends in familial relations.22After the success of the program, New Zealand broadened the scope of its restorative processes, a decision that was supported by the public.23 While New Zealand is accredited as the birthplace of modern restorative justice, its roots belong to the native tribes who rejected the Western criminal justice structure in the name of a more peaceful existence.

III. FALLACIES OF THE RETRIBUTIVE APPROACH

The birth of serious reflection on the integration of restorative practices in modern criminal justice proceedings can be largely credited to the issues associated with the retributive approach. One of the most discernible being the egregious incarceration rates in the United States. According to the 2020 National Prisoner Statistics report the U.S. leads the world in incarcerated individuals per capita at approximately 2.3 million or 639 per 100,000.24 The consequences of overcrowding alone include shortage of infrastructure and staffing which mutates into health and safety concerns,

17 See LODE WALGRAVE,CRITICAL ISSUES IN RESTORATIVE JUSTICE 191 (H. Zehr & B. Toews ed., Lynne Rienner) (2010)

18GabrielleMMAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND:TOWARDS A RESTORATIVE SOCIETY 50 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022). The Children, Young Persons, and Their Families Act was in response to concerns for children’s rights and inadequacies regarding young offenders in the criminal justice system.

19 See GABRIELLE MMAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND:TOWARDS A RESTORATIVE SOCIETY 31 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022).

20 GABRIELLE MMAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND:TOWARDS A RESTORATIVE SOCIETY 41 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022).

21 GABRIELLE MMAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND:TOWARDS A RESTORATIVE SOCIETY 54 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022).

22 E.g., GABRIELLE MMAXWELL ET AL., RESTORATIVE JUSTICE AND PRACTICES IN NEW ZEALAND:TOWARDS A RESTORATIVE SOCIETY 66 (Wipf and Stock) (2010),https://wipfandstock.com/9781608999057/restorative-justiceand-practices-in-new-zealand/. (last visited Mar 25, 2022). 23 Morris, Allison, and Gabrielle Maxwell, 16-20 Restorative Justice in New Zealand: Family Group Conferences as a Case Study. Western Criminology Review 1.1 (1998). 24 See, e.g., United States. Bureau of Justice Statistics. National Prisoner Statistics, [United States], 1978-2018. Inter-university Consortium for Political and Social Research [distributor], 2020-07-23. https://doi.org/10.3886/ICPSR37639.v1

taking the goal of rehabilitation and reintegration out of focus. The goal of the restorative process is not to lower incarceration rates, but the process of evaluation and open dialogue can offer an alternative in the appropriate context.25 It should be noted that many proponents of these processes have seen a decline in the demand for punishment after the needs of communities are addressed and reconciled.26 When the primary goal is retribution, the victims of the crime are placed in a subsidiary role and the State becomes the principal offended party.27 From the perspective of the victim, satisfaction is often not fully achieved at sentencing. Without some level of understanding as to why this happened to them and no chance to express how they have been impacted on any level beyond a factual recount of events, they leave the encounter potentially unsatisfied and scorned.28 From the perspective of the offender, the process of a trial is designed to isolate them in an environment where all power is resigned to professionals with the understanding that they generally do not have fluency in courtroom formalities. When their justification for the crime is disregarded, the frustration that follows can manifest as continual offenses. Both the victim and the offender become bystanders in a process in which the primary beneficiary is the State and is inefficient at fully resolving their needs.29 Restorative programs offer a mediated platform for open dialogue between victim and perpetrator in which the focus is returned to their experiences without the interference of a judge and formal representation.30 The restructuring of roles that happens within restorative programs is a quality derived from aboriginal law, dismantling the hierarchical structure which in turn brings the focus back to the experiences of those directly involved. Historically, these programs have not exonerated the offender from facing further retribution beyond the mediation. Instead, they center on addressing individual experiences so that the disciplinary action is fully understood and accepted.31 One of the grandest deficiencies of retributive justice is the culture of fear it forms between citizens and law enforcement. When the goal of a criminal reform system is to punish rather than rehabilitate and reintegrate, the adversarial relationship that is formed between the citizens and the State trickles down to the conduits of the system, breeding a cycle of tension and violence.32 In recent years, police related violent crimes have taken center stage in the media, highlighting the deteriorating relationship between the public and law enforcement. Interactions between historically marginalized racial communities and law enforcement through generations of American history have propagated this inimical narrative, rooting it deep in the foundations of entire communities and making the idea of future reconciliation feel unattainable.33 Restorative programs recognize that the aftermath of a crime influences more than just those immediately

25 E.g. HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 25(Good Books Revised and updated) (2014) 26 (AUTHOR),CRITICAL ISSUES IN RESTORATIVE JUSTICE 10 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 27 See, e.g., D Roche, Accountability in Restorative Justice, 8 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 28 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 25(Good Books Revised and updated) (2014)

29 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 25(Good Books Revised and updated) (2014) 30 D Roche, Accountability in Restorative Justice, 9 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004)

31 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 20(Good Books Revised and updated) (2014) 32 See (AUTHOR),CRITICAL ISSUES IN RESTORATIVE JUSTICE 381 (H. Zehr & B. Toews ed., Lynne Rienner) (2010) 33 See (AUTHOR),CRITICAL ISSUES IN RESTORATIVE JUSTICE 315-317 (H. Zehr & B. Toews ed., Lynne Rienner) (2010)

involved and emphasizes the importance of rebuilding relationships between communities to prevent the spread of future enmity.34

IV. ON RESTORATIVE JUSTICE PROGRAMS

In what we recognize as traditional sentencing programs there is little variation in how the decided sentence will be carried out. The one size fits all approach is meant to produce a consistent experience among those who enter the system so that the consequences of committing the analogous offense is well known, subsequently becoming a deterrent from future executions of the crime.35 When the solitary goal behind sentencing is to reproduce the inconvenience or pain that the victim experienced to then be imposed on the offender, no progress is being made toward the dissolution of the causal conflict.36 When the arbitration efforts of the State end with punishment, the relationships between the victim, offender, and affected communities are often neglected and left in an acrimonious state. Particularly in cases of racial and ethnic injustices, the persistent neglect of these relationships has formed a pattern of perpetuating into a generational strife, thus allowing the original conflict to reach across time and continue to negatively impact these communities. The primary difference between the more traditional system and the restorative process is that these programs can adapt to each case, adjusting their goals after an analysis of all moving parts so these relationships do not become collateral to retribution efforts.37 The restorative justice process cannot be defined by a singular practice. Rather it is a shift in the perspective on what the goal of the sentencing process should be so that the more long-term effects of the crime are addressed in a facilitated setting.38 The establishment of goals in the restorative process is the most crucial step for each case, making sure no variable goes unaddressed. The immediate objectives of these programs include the acknowledgement of wrongdoing, exchange of perspective, and restitution or vindication.39 Each of the aforementioned goals covers a broad definition, and not all need to be addressed in every case. Typically, a combination of aspects from all three goals is found to be the most beneficial when creating a program for each case. These immediate goals are designed to build to larger concluding goals meant to permeate the lives of all those involved moving forward. The long-term objectives include rehabilitation, responsibility, reintegration, and healing.40 These concepts are often perceived as adversarial to the goals of the retributive approach, which is only

34 See D Roche, Accountability in Restorative Justice, 26 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004)

35 See JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 204(Oxford University Press) (2002)

36 See JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 190-191(Oxford University Press) (2002)

37 See, e.g., DENNIS SULLIVAN &LARRY TIFFT, RESTORATIVE JUSTICE :HEALING THE FOUNDATIONS OF OUR EVERYDAY LIVES 59(Willow Tree Press 2nd) (2005)

38 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 13-14(Good Books Revised and updated) (2014)

39 See HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE :ABESTSELLING BOOK BY ONE OF THE FOUNDERS OF THE MOVEMENT 23(Good Books Revised and updated) (2014)

40 See, e.g., JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 88(Oxford University Press) (2002)

true when a criminal justice system is married to a singular ideology.41 Most of the programs under the restorative umbrella do not forgo restitution for restoration. It is simply an additional step in the process to make it more enriching. Almost every element of these processes is subject to some degree of personalization, the most significant being the format of the program itself. Most programs fall into one of three categories, but there are many instances of hybrids of two or more of these categories to completely meet the needs of the specified area or case. The first classification of program is commonly referred to as Conference Programs, the fastest growing in terms of popularity in the western world over the last decade.42 Within a conference setting, the parties included in the mediation are the victim and offender, often accompanied by the support of a community or family members.43 While these types of programs have replaced formal incarceration in some cases, (most frequently in New Zealand, its country of origin), it has also been noted to accompany conviction in many instances.44 In the criminal justice sphere these conferences are often run by police departments or adjacent government departments but their active role is minimal, an appropriate way to describe their involvement is closer to the host side of the spectrum rather than the presiding authority figure.45 Conferences are the model most frequently associated with restorative justice because it is the most fluid design and offers the greatest degree of dialog between victim, offender, communities, or any combination of the three. Of the three general forms these programs can take, sentencing panels are the most similar to courtroom proceedings.46 Sentencing panels are more thoroughly structured than conference models and are centered on addressing the offender. Generally, victims are not directly involved in sentencing panels but are represented by volunteers who provide statements on their behalf.47 The panel itself is typically composed by community volunteers and the process is typically facilitated by a government department. Typically, the offender appears before the panel in a manner similar to courtroom procedure, but the more intricate formalities are omitted from the process. Panels are meant to offer a community’s perspective on the crime, thereby allowing the offender a better understanding of the scope of the damage beyond the immediate victim. The volunteers are charged with the responsibility of deciding an appropriate restitution for the offender to pay, and the encounter is recorded for a judge to review, or one is present at the actual event.48 Multi-form programs take aspects of the previous two meeting types and pair them with intervention tools specific to their case to form a unique program.49 These programs can either

41 E.g. D Roche, Accountability in Restorative Justice, 230 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 42 See Ruloff, C. P. & Findler, Patrick (2022). On retributive justice. Think 21 (60):57-64. 43 See D Roche, Accountability in Restorative Justice, 66 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 44 E.g. D Roche, Accountability in Restorative Justice, 55 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 45 E.g. JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 45 (Oxford University Press) (2002) 46 See D Roche, Accountability in Restorative Justice, 67 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004)

47 See JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 45 (Oxford University Press) (2002) 48 See D Roche, Accountability in Restorative Justice, 120 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 49 See, e.g., D Roche, Accountability in Restorative Justice, 67 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004)

replace formal sentencing or accompany it depending on the severity of the crime.50 The two programs previously mentioned are used as a kind of baseline model from which multi-form programs are created and practiced. Most restorative programs currently in place around the world fall under the umbrella of multi-form programs because of the wide range of intervention tools that are available to them. Some examples of this include the participation of psychologists, formal representation, judges, and support systems of both the victim and the offender. Most programs will take place in a conference setting when dealing with less serious crimes while the more serious offenses tend to have less active victim participation and do not typically replace formal sentencing.51

V. THE DESTRUCTION OF THE OBELISK SANTA FE, NM (2020)

The foundation of New Mexico’s cultural history is deeply intertwined with that of the native tribes and their inimical relationship with Western society. Historic interactions between these two groups are associated with war, disease, and general animosity. Centuries after the first futile interactions between these two groups, distrust manufactured by generations of conflict has become deeply rooted within these communities. The cycle of allowing these high tensions to cultivate without intervention has continually led to physical confrontation as the root of these frustrations are continuously ignored. This cultural conflict was illustrated most recently at a protest at the historic Santa Fe Plaza in Santa Fe New Mexico (2020).52 The Plaza is home to an obelisk erected in 1866 to honor Civil War-era soldiers who died in battle with Native Americans. The monument was considered controversial due to its inscription which referred to the native people as “savages”. For months leading up to the conflict, an all-female indigenous rights nonprofit group known as the Three Sisters Collective repeatedly tried to have the city remove the monument, a decision that was agreed to by the city council. After it was decided that the monument was too massive to remove, the inscription was shaved away instead. On October 12th, 2020 a protest in the plaza resulted in the toppling of the monument by protestors.53 The removal of statues and monuments in memoriam of controversial historical figures is a conversation that has sparked controversy in New Mexico in recent years. Many citizens outside of indigenous communities feel that it is important to change the narrative surrounding historical figures that negatively impacted minority communities in the state. The opposition sees these monuments as an integral part of New Mexican history and do not think government funds should be allocated for their removal. In the case of the Obelisk, eight individuals were charged with vandalism and sentenced to participate in a restorative justice

50 See, e.g., D Roche, Accountability in Restorative Justice, 69 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004)

51 See D Roche, Accountability in Restorative Justice, 124 LEGAL STUDIES :THE JOURNAL OF THE SOCIETY OF PUBLIC TEACHERS OF LAW , 494–642 (2004) 52 Isabella Alves, Kyle Land, & T.S. Last. Protesters take over SF Plaza, topple obelisk (2020) https://www.abqjournal.com/1506285/native-american-activists-tear-down-santa-fe-obelisk.htm 53 KRQE Staff, 2 Arrested for Plaza Obelisk Toppling. (2020) https://www.krqe.com/news/crime/2-arrested-forplaza-obelisk-toppling/?ipid=promo-link-block

program, complete 320 hours of community service and pay a combined fee of just over $15,000.54 Of the original eight charged, four completed the program and had their cases dismissed within a year of the conflict; the other four faced a more extensive list of offenses extending their cases into the present.55 The structure and details of the restorative meetings were made private as all defendants signed on to a confidentiality agreement, a decision that faced great criticism by the public.56 The reports from citizens supporting District Court Attorney Mary Carmack-Altwies’ referral to a restorative program were few and far between. The decision was in large part met with protest by the citizens of Santa Fe, referring to the program as “lacking both transparency and teeth” and that the defendants “got off easy”. 57 Carmack-Altwies later released a statement in which she acknowledged the concerns of the community and confirmed her own frustrations with the confidential aspect of the meeting and urged restorative advocates to work towards a more transparent model for future cases. The issue of confidentiality in restorative cases is a difficult subject to approach, especially when the issue affects entire communities as in the case of the obelisk. The protest, even if no injuries resulted from it, still caused disruption and damage to the Santa Fe Plaza, an act the citizens of Santa Fe want reparations for. Repairing community relationships is one of the foundational goals of restorative practices and confidentiality agreements such as this one exclude community involvement entirely. In this case, without community input, the narrative that formed around the program was that the reconstruction of interpersonal relationships was a goal the State was not truly devoted to making the allocation of resources in its benefit an inept cause. This is an example of how the restorative processes’ rejection of a set structure can make it difficult to satisfy the demands of all parties involved. The defendants signed on to a confidentiality agreement was due to some of them receiving violent threats as this was a case heavily covered by local media.58 Although this detail was made public, it was widely disregarded in most Santa Fe residents’ commentary on the case. This was an instance of generations worth of mistreatment experienced by a marginalized community that erupted in a passionate display of frustration; a conflict restorative justice is consistently referenced as being especially equipped to resolve. This is not to conclude that the program implemented by the State was entirely unsuccessful as transcripts from the interactions have remained confidential, but the accounts that are available from private citizens express significant disdain for the outcome of the proceedings. This case highlights some of the imperfections of restorative justice and how similarly to much of societal progression, there must be an allowance for trial and error if these inconsistencies are to be eliminated. The high-profile nature of this case resulted in a barrier between the beneficence of the restorative justice process and most of the affected community, leaving a sour taste in the mouths of the public. The fluid definition of restorative practices contributed to the confusion around what

54 Sean P. Thomas, Obelisk Defendants Complete Restorative Justice Program. (2020) https://www.santafenewmexican.com/news/local_news/obelisk-defendants-complete-restorative-justiceprogram/article_42a369ca-8f81-11ec-9269-571e65941a9d.html 55 KRQE Staff, 2 Arrested for Plaza Obelisk Toppling. (2020) https://www.krqe.com/news/crime/2-arrested-forplaza-obelisk-toppling/?ipid=promo-link-block 56 E.g., KRQE Staff, 2 Arrested for Plaza Obelisk Toppling. (2020) https://www.krqe.com/news/crime/2-arrestedfor-plaza-obelisk-toppling/?ipid=promo-link-block 57Sean P. Thomas, Obelisk Defendants Complete Restorative Justice Program. (2020) https://www.santafenewmexican.com/news/local_news/obelisk-defendants-complete-restorative-justiceprogram/article_42a369ca-8f81-11ec-9269-571e65941a9d.html 58 See Isabella Alves, Kyle Land, & T.S. Last. Protesters take over SF Plaza, topple obelisk (2020) https://www.abqjournal.com/1506285/native-american-activists-tear-down-santa-fe-obelisk.htm

the purpose of the implementation of this program was, especially one so firmly adversarial to the traditional retributive approach. The disappointment garnered when the defendants did not face harsher punishment was amplified by the extensive media coverage, as a much larger audience was able to unify to express dissatisfaction with this decision. These are all variables that could not have been easily accounted for when the decision was made to move forward with a restorative program, but the results are invaluable to the reformation and implementation of future programs. The contributions restorative justice processes can make in the mending of relationships between Native communities and the general population of New Mexico is a possibility in its infant stage of exploration. The growth of this movement is reliant upon the public’s support of restorative goals in a long-term context, despite the current imperfections displayed in the case of the obelisk.

VI. CONCLUSION

When addressing the criminal justice system in the U.S., the idea that there is always room for improvement is an aphorism commonly forgotten as the issues with retributive justice are often assessed as less pestilential than the uncertainty of change. Even more frequently, the issues are denied acknowledgement altogether. As we progress into the modern era, these fallacies are becoming increasingly undeniable, tearing away at the traditionalist view of crime and how to deal with it most efficiently. No justice system will ever achieve perfection, but that does not mean there are no improvements to be made. Legislation is constantly being passed to better adapt the laws to the needs of society, but the perspective on crime and criminals is not as fluid, limiting the benefits of said legislation. One of the most prominent issues facing U.S. society in recent years is racial and ethnic communities as seen in the case of the obelisk, a conflict retributive justice is not equipped to resolve on its own. Modern movements for social justice have shown a spotlight on this disunity and the criminal justice system’s proclivity for furthering this divide. Restorative practices offer an avenue through which these pervasive societal issues can be addressed as we progress into an era which prioritizes equality and healing within communities. The complexities of generational trauma can make the task of relational progress seem exceptionally daunting, as seen in the case of the Obelisk. If these past iniquities continue to go unaddressed, the anger fostered by generations of injustices will negatively affect every future generation in the United States. The restorative program implemented in the Obelisk case was not as well-received as the ambassadors of the theology hoped it would be, but its achievements are no less valued. The controversy surrounding the introduction of restorative values into the criminal justice system which stands where these values were first conceptualized has given the issue a platform in modern media. A conversation about how to begin the reconciliation efforts with the indigenous people of New Mexico was prompted by the restorative efforts of the State, a victory which cannot be overlooked. To make relational progress, retributive justice can no longer be the only acceptable form of justice in the United States. The domination of land and their inhabiting cultures is a consistent theme in U.S. history, but the strong hierarchical structure that is necessary to achieve control of groups of people that is reflected in our criminal justice system is no longer appropriate in a society that is now focused on the achievement of equality. Retributive justice has the tools to address many of the fallacies of the traditional system but until its goals are recognized as valuable to the enhancement of the current process, it will never gain the traction it needs to make an impact. The trial and error demonstrated by the Obelisk case is important to assess the strengths and weaknesses