Something Worth Striving For, by Janine Geske

I

BY JANINE GESKE

am a former Milwaukee County Circuit Court judge and Wisconsin Supreme Court justice and an advocate for restorative justice. People regularly ask me whether restorative justice approaches could serve as an alternative to the criminal justice system. My usual answer is that the criminal justice system should not be entirely replaced.

Criminal court proceedings serve many purposes, including the preservation of constitutional rights and the determination of guilt or innocence. But there is no question that we should be utilizing many more restorative justice approaches before, during, and after criminal charges.

“For restorative justice to be successful, the offender must admit to being involved in the alleged conduct and be willing to participate.”

For restorative justice to truly be an alternative to the criminal justice system, there must be a process to address the harm caused by the crime before an individual is charged. There are also many ways to integrate a restorative process (victim–offender mediation, community conferencing, family group conferencing, etc.) at various points in a criminal case. The process can lead to either a dismissal of the case or reduced incarceration.

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1

“What is the ‘Circle’ Process and the Guiding Principles of the CRC?” The Dane County Department of Human Services. Accessed November 10, 2022, https://www.dcdhs.com/Children-Youth-andFamily/Community-Restorative-Court.

2 “Frequently Asked Questions,” The Dane County Department of Human Services. Accessed November 10, 2022, https://www.dcdhs. com/faq/home 3 “What is the ‘Circle’ Process and the Guiding Principles of the CRC?” 4 “What Is the Pre-Filing Neighborhood Justice Program, or NJP?” Greg Hill & Associates. Accessed November 10, 2022, https://www. greghillassociates.com/what-is-the-pre-filing-neighborhood-justiceprogram-or-njp.html.

CCO Public Domain

Something Worth Striving For

However, restorative justice will generally not be appropriate when there are constitutional concerns that should be litigated or when the accused denies committing the crime. For restorative justice to be successful, the offender must admit to being involved in the alleged conduct and be willing to participate.

Some criminal defense attorneys are critical of incorporating restorative justice into the criminal justice system, because they worry that their clients will have to admit their guilt and risk negatively impacting their cases. Generally, a restorative justice process requires admission of fault and a plan that the offender must agree to follow. If the offender does not comply with the plan, the offender’s case will be sent back to court with the original charges.

Despite these misgivings, there are several examples of successful restorative justice programs. For example, Dane County, Wisconsin, implemented Restorative Justice Court (RJC) modeled after the “circle justice” processes utilized by Native American tribes. In the RJC, residents, victims, and offenders work together to find a resolution that repairs the harm done 1 to the community. The Dane County District Attorney’s Office 2 or a law enforcement agency refers eligible offenders—those between the ages of 17 and 25 who have committed a misdemeanor or a municipal ordinance violation—to the RJC. Once participating in the RJC, offenders must take accountability for their actions and be willing to participate in the restorative justice process. Both victims and offenders meet separately with RJC staff to discuss the incident. Trained volunteers from the community, called peacemakers, assist in the circle process by creating an agreement outlining how offenders will repair the harm. If an offender complies with the terms of this repair harm agreement, they are not charged: Ninety-two percent of offend3 ers successfully complete their repair harm agreement.

Another successful example is the restorative justice court in Los Angeles. The Neighborhood Justice Program (NJP) may be used as an alternative to the criminal justice system if the offender 4 committed a low-level misdemeanor. Police departments forward the police report to the Los Angeles City Attorney’s Office, which considers the offender’s past criminal record and the facts of the case to determine whether it will refer the case to the NJP or file the case in court. The NJP process includes a facilitator, the offender, and two community members. The offender creates a list of harms they have caused and often writes apologies to people they may have harmed. To avoid criminal prosecution, an offender is given a list of tasks to perform within two months; if

Recidivism Rate Participants Who Reoffended Los Angeles Restorative Justice Court

5%

Wisconsin CCP 2000-08

9%

Baltimore Community Conferencing

60% less likely to

Minnesota's Circle of Support & Accountability

Non-Participants Who Reoffended

Compliance with Agreement

28%

62.2% in 2004 97% of 98% complied

reoffend

Lowered arrests by

they comply, they avoid criminal prosecution but if they do not comply, the case returns to court. The NJP received over 5,000 referrals, and the recidivism rate for those who successfully complied with the program is 5 percent.

Likewise, Milwaukee offers the Community Conferencing 5 Program (CCP) as an alternative to the criminal justice system.

An offender must be referred by a prosecutor, defense attorney, victim–witness advocate, judge, law enforcement officer, probation officer, or a victim. The program does not accept offenders who have committed violent crimes or cases involving drugs or guns.

It determines eligibility based on factors such as whether the offender has taken responsibility for the act and their degree of remorse, prior record, type of crime, and general attitude toward the victim. Once a case is accepted into the CCP, the victim, offender, and affected community members come together with an impartial facilitator to discuss the crime and its impacts. Then community members come up with ideas on how the offender can repair the harm they have caused. If the offender successfully complies with the guidelines the community members provided, the offender is entitled to receive reduced charges or sentences or 6 have the charges against them dismissed. In 2004, the Wisconsin Legislature surveyed CCP offenders and found that 4.3 percent of offenders who participated in the program reoffended while 13.5 percent of nonparticipants reoffended. Moreover, 62.2 percent of offenders who signed conditions of agreement complied with their 7 agreements. In addition, between 2000 and 2008, offenders who did not participate in CCP had a recidivism rate of 28 percent, while 8 those who did participate in CCP had a recidivism rate of 9 percent.

There are similar programs around the country. Minnesota’s Circle of Support and Accountability restorative justice program lowered re-arrest rates by 62 percent and lowered the return to

62% and return to prison rates by 84% 9

prison rate by 84 percent. In Baltimore, participants of the Community Conferencing program are 60 percent less likely to 10 reoffend. Moreover, out of the 98 percent of participants who reached an agreement in this program, 97 percent complied 11 with the terms. In addition, Texas and Ohio were the first states to develop a statewide program for victim–offender dialogue in serious and violent crimes. Both victims and offenders gave the program overwhelmingly positive evaluations: Most report the 12 experience is life changing.

All of these examples show that while restorative justice cannot completely eliminate the criminal justice system, certain cases present unique opportunities to engage in restorative justice as an alternative to the criminal justice system or as part of the criminal process. Traditional criminal justice systems are offender-focused: the arrest, charging, investigation, prosecution, conviction, sentencing, and incarceration all center around offenders. This gives victims few meaningful opportunities to have their voices heard. Restorative justice, on the other hand, is victim-focused and holds offenders accountable for the direct harm they cause. Repair of this harm is at the center.

A restorative justice model is worth striving for. It develops relationships and strengthens community ties and brings people together who would not otherwise have met. In addition, restorative justice creates a safe place for everyone—victims and offenders—while the traditional criminal justice system builds boundaries that keep people separated. Restorative justice positively impacts and transforms not only the victim and the offender but the community as a whole and has been linked to reducing recidivism rates and increasing restitution to survivors.

Justice Janine P. Geske is the director of the Andrew Center for Restorative Justice and a distinguished professor of law at Marquette University Law School in Milwaukee, Wisconsin.

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5

John T. Chisholm, Community Conferencing Program (Milwaukee, WI: Milwaukee County District Attorney's Office).

6 An Evaluation: Restorative Justice Programs Milwaukee and Outagamie Counties (Milwaukee, WI: Wisconsin Legislative Audit Bureau, June 2004).

7 Ibid.

8 Mark Umbreit, Notable Restorative Justice Programs (Minnesota: University of Minnesota School of Social Work, September 21, 2010).

“Restorative Justice Research Summaries: Three Meta-Analyses Show Positive Outcomes for Restorative Justice Conference Programming,” University of Minnesota Duluth, accessed October 7, 2022, https://rjp.d.umn.edu/resources/rj-research-summaries 10 Ibid.

11 Ibid.

12 M. S. Umbreit et. al. Executive Summary: Victim Offender Dialogue in Crimes of Severe Violence: A Multi Site Study of Programs in Texas and Ohio. (St. Paul, MN: Center for Restorative Justice & Peacemaking, 2002).

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