Get 20M+ Full-Text Papers For Less Than $1.50/day. Start a 14-Day Trial for You or Your Team.

Learn More →

Implementing Restorative Justice Under the Retributive Paradigm: A Pilot Program Case Study

Implementing Restorative Justice Under the Retributive Paradigm: A Pilot Program Case Study This article explores the implementation of a pilot program in restorative justice in a medium-sized Midwestern city. Through an examination of meeting minutes, interviews, and the personal reflections of the authors, this article examines the implementation of a victim–offender mediation program, referred to throughout the article as the Fast Track Accountability Program (FTAP). Presented as a case study, the authors describe the key stakeholders, the process, the obstacles, as well as lessons learned along the way. Particular attention is given to the essential role of strong leadership and to the challenges faced when implementing such a program within the bureaucracy of the current, retributive, criminal justice system. Keywords restorative justice, implementation, victim–offender mediation, policy This research captures something rather unique to the lit- has been adopted in the United States in a limited and at best erature on restorative justice. What follows is a detailed piecemeal fashion. This landscape is largely due to the real- case study of the implementation of a victim–offender ity that restorative justice represents a major shift in both mediation pilot program. The impetus for this project, as philosophy and practice within the United States. well as the sustained effort to achieve the desired outcome Under the current, retribution-based, criminal justice sys- was provided by the Restorative Justice Coalition of West tem, the main focus is on determining guilt and dispensing Michigan (RJCWM). punishments. A criminal act is, by definition, a crime against As a case study, this research offers an inside look into the the state (Lemley & Russell, 2002). Unlike the retributive process of moving restorative justice theory into practice. model, restorative justice defines crimes by the harms cre- The authors describe the implementation process from the ated. The focus of restorative justice is to repair the harm early stages of planning through implementation. Presented caused by crime, making victims whole, holding offenders in a chronological fashion, the authors explore the many accountable, and preventing the occurrence of similar harms challenges faced throughout the process. Major obstacles in the future (Van Ness, 1996; Van Ness & Strong, 1997; include a lack of support from key stakeholders within the Zehr, 1990). criminal justice system, misconceptions surrounding the phi- A popular definition offered by Tony Marshall (1996) losophy of restorative justice, securing program funding, and states that restorative justice is “a process whereby all the stability of leadership among the implementation team. parties with a stake in a particular offence come together to Although the campaign to implement a pilot program in resolve collectively how to deal with the aftermath of the restorative justice was ultimately successful, the final prod- offence and its implications for the future” (p. 37). The pro- uct was far removed from the original vision of RJCWM. cess begins with the realization that crime signifies injury. One goal, then, of restorative justice is to repair that injury, to Restorative Justice Grand Valley State University, Grand Rapids, MI, USA Restorative justice continues to slowly emerge as an alterna- 2 Calvin College, Grand Rapids, MI, USA tive to the more familiar forms of retributive justice in the Aquinas College, Grand Rapids, MI, USA United States. While restorative justice has roots in antiquity Corresponding Author: (Braithwaite, 2002), and continues to serve as one of several Patrick Gerkin, Grand Valley State University, 401 W. Fulton St., Grand competing philosophies of crime and justice in numerous Rapids, MI 49506, USA. countries throughout the world (Van Ness & Strong, 2002), it Email: gerkinp@gvsu.edu Creative Commons CC-BY: This article is distributed under the terms of the Creative Commons Attribution 3.0 License (http://www.creativecommons.org/licenses/by/3.0/) which permits any use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage). 2 SAGE Open make the situation right. Victim(s) and offender(s), along shift some of the ownership in resolving these matters back with other interested parties take part in a process of healing to the primary stakeholders. the injury experienced by the victim (Roche, 2003). Victims Overall, restorative justice represents a clear shift in phi- and offenders are, ideally, participants. They are given a losophy and practice. Restorative justice places victims at degree of ownership in deciding an appropriate response to the center of the process rather than offenders. Instead of a the harm created by the offender’s actions. Restorative jus- focus on determining guilt and dispensing punishments to tice affords victims, offenders, and the community an oppor- offenders, restorative justice seeks to repair the harm caused tunity to participate in creating justice, allowing them to by crime and prevent similar harms in the future (Zehr, insert their voice and regain a sense of control in their lives. 2013). These were the philosophical underpinnings that grounded the attempt to design and implement the pilot pro- gram in restorative justice described herein. Mediation The words “restorative justice” are used as an umbrella term The Beginning to describe a variety of programs that view crime and the response to crime through a restorative lens (Zehr, 1990). Fast Track Accountability Program (FTAP) was a pilot pro- Such programs include victim–offender mediation, family gram implemented in 2010 within a Midwestern city of group conferencing, community reparative boards, sentenc- approximately 200,000 residents. The city is situated in a ing circles, and sentencing panels. county with a population of approximately 600,000. The first victim–offender mediation program emerged in According to the U.S. Census, the city is composed of 59% the 1970s (Van Ness & Strong, 2013). Mediation offered non-Hispanic Whites, 20% African American, 15% Hispanic/ “victims and offenders the opportunity to meet one another Latino, and 2% Asian (U.S. Census Bureau, 2015b). The with the assistance of a trained mediator to talk about the median household income (in 2014 dollars) was US$39,913, crime and come to an agreement on steps toward justice” including some 26% living below the poverty line (U.S. (Van Ness & Strong, 2013, p. 83). Prior to the 1970s, crime Census Bureau, 2015a). During 2010, there were slightly victims were largely ignored by the criminal justice system. more than 4,000 misdemeanor warrants authorized by the However, beginning in the 1970s, the victims’ rights move- county court (Forsyth & Becker, 2015). ment began to push for greater victim participation in the In the case in question, the attempt to integrate restorative justice process (Daigle & Muftic, 2016). It is no coincidence principles into a meaningful program came out of a group of that restorative practices such as mediation emerged during community advocates that banded together to form a restor- this period. ative justice coalition. Ultimately the group settled on the Mediation, in accordance with the principles of restor- name RJCWM. The organic grassroots beginnings of this ative justice, seeks to maximize victim participation in the group mirrored the philosophical ideal that restorative prac- process of achieving justice. Through mediation, the parties tices should emerge from the communities, themselves, most directly affected by the harm (victims, offenders, and rather than being imposed from high-powered leaders the community) gather in search of healing, restoration, (Hopkins, 2004). At the same time, the role of strong leader- accountability, and prevention (Zehr & Mika, 1998). The ship in the formation and maturation of this coalition cannot mediation process is guided by a trained facilitator whose job be underestimated. Without the benefits afforded by the rela- it is to help the participants resolve the situation and to repair tionships fostered and developed by its early leaders, FTAP the harm experienced by the victim. The mediator is there to would never have reached the implementation stage. assist the parties in making their own decisions about how to Although the groundswell for a restorative justice pro- repair the harm. He or she is not there to make these deci- gram ideally comes from the community itself, the reality of sions for the parties. a bureaucracy instituted to uphold a retributive approach One tangible outcome of a victim–offender mediation is a necessitates a pragmatic approach that requires the active written agreement between the parties about how the harm assistance of high-powered leaders. In the case in question, will be repaired. Victims play a central role in the creation of that high-powered leader was a City Commissioner. the agreement, and offenders participate as well (Daigle & The early planners included a rather diverse group of peo- Muftic, 2016). Thus, the participants themselves become the ple. Among the early members of RJCWM, there was a core owners of the justice process and its outcomes. group of local-level politicians, neighborhood association This stands in stark contrast to the offender-centric and leaders, college professors, religious leaders, criminal justice state-dominated criminal justice system that routinely disem- reformers, and interested citizens. Virtually all of them were powers both victims and offenders as the state defines what brought to the table at the request of a City Commissioner justice should be (Zehr, 2013). This system is the result of a who once remarked that he would talk to anyone who would major paradigm shift that moved justice out of the commu- listen and that he intentionally cast a wide net and hoped nity and into a state-run, rights-based model (Van Ness, some people would “stick around” (D. LaGrand, personal 1990). Restorative justice is part of a movement that hopes to communication, December 12, 2012). Gerkin et al. 3 In retrospect, the early planners and designers echoed year in jail. The three categories specifically targeted were themes identified by O’Conner (1997), who suggested that a removing property not your own (commonly referred to as key to the success of restorative justice programs is leader- shoplifting), malicious destruction of property (MDOP), ship that recognizes the unique environmental and social fac- and meddling and tampering. Both removing property and tors that must be accounted for to facilitate development. The MDOP are charged as misdemeanors, when the value of the Commissioner’s experiences in prosecution and private property or the amount of the destruction or injury, respec- practice gave him insight into the environmental and social tively, is less than US$200.00. Under the current system, per- factors at work in the local justice system. sons found guilty of these offenses are punishable by imprisonment for not more than 93 days and/or a fine of not more than US$500.00 or 3 times the value of the property, Program Design whichever is greater. The logic behind selecting these three The City Attorney’s office was identified as the gatekeeper to particular crimes was that they constituted the low hanging the program. This was a strategic decision on behalf of the fruit for the 61st District. On average, there were approxi- leadership of RJCWM. Other “diversion” programs had their mately 500 such cases each year in the 61st District Court. inception within the state of Michigan’s 61st District Court, There were a few additional stipulations put in place by most notably the Drug and Sobriety Court founded in 1999 by the City Attorney’s office. Those eligible for the program Judge Patrick Bowler. In a similar manner to FTAP, the 61st included only those who pleaded not guilty at their arraign- districts’ Drug Court emerged largely as the vision of one man. ment. Additional eligibility criteria set forth by the City As 61st Court administrator Josef Soper observed, “[t]he fact Attorney included not being charged with an associated fel- of the matter is that programs such as drug courts are created ony or violent misdemeanor. However, prior convictions of because people in a position to implement them, do” (Soper, any kind would not prevent offenders from being eligible to 2006). The decision to begin FTAP from outside the Court was participate. guided largely by the fact that the City Attorney shared the FTAP allowed offenders to have their charges appear as Commissioner’s vision, and the judges were less enthused. “dismissed” on their permanent record if they conceded to The lack of enthusiasm on the judges’ part was a point of entering into mediation, negotiating a contract with the vic- much discussion in early planning meetings. The issue was tim, and fulfilling that contract. In other words, this program discussed at numerous board meetings of RJCWM. The gen- functioned as a diversion for eligible participants. Contracts eral consensus of the board was that this program would for the program needed to meet basic criteria established by never be successful without the court’s support. There would the City Attorney, including a sincere apology, full restitu- be no cases to handle. tion, and at least 20 hr of community service. Discussion with officials at the 61st District Court indi- Program designers, optimistically hoping for room to cated that the primary concern from the judges was one of negotiate, raised several concerns. First, they expressed a cost. Once a defendant is charged with a crime, an automatic desire to cast a wider net, but found little room for negotia- timetable is set in motion with the court. To keep a case on tions with the City Attorney’s office. Second, program track, the Court had no choice but to route individuals designers pushed back against the agreement requirements, through both the current system and FTAP at the same time. explaining that the participants should have the freedom to In cases where the offender did not fulfill his or her agree- create the stipulations put forth in the agreement, and noted ment/contract, traditional court processing was the fallback. that although an apology was ideal, a forced or insincere When offenders did fulfill his or her contract, charges were apology can actually lead to revictimization. Finally, pro- dismissed, and the Court had no avenue to assess fees and gram designers pushed back against the not guilty require- costs that would normally offset the costs of all the pretrial ment. RJCWM took this as an opportunity to inform/educate work. Thus, from the Court’s perspective, FTAP represented the practitioners about restorative principles, but again found a cost with no possibility of recoupment. (See section titled little room for negotiations. In the end, the program design- “Discussion” for further consideration of this issue.) ers determined these were necessary concessions to keep Given the less than enthusiastic response from the judges, the pilot program moving forward. (See section titled and the apparent interest of the City Attorney, the City “Discussion” for further consideration of this issue.) Attorney’s office became the obvious choice. Following a Eligible individuals (hereafter referred to as offenders) police report, the City Attorney’s office approves a misde- were to be contacted first and the program’s nature and meanor charge or warrant authorization. This initial step at requirements would be explained. Offenders were to be con- the City Attorney’s office was also selected as an ideal point tacted for consent to participate before victims. This was to screen out individuals who did not meet certain criteria for done to avoid revictimization by encouraging victims to par- FTAP. ticipate in a process only to find the offender unwilling. Only The City Attorney’s office stipulated that all eligible par- after offenders agreed to participate were the victims to be ticipants would be adults who were arrested for misdemean- approached. They too would receive an explanation of the ors where the maximum possible penalty did not exceed 1 program and would be invited to participate. 4 SAGE Open The City Commission approved US$60,000 for the proj- personnel to adopt restorative practices (Hayes, 2007). ect from a Federal Justice Assistance Grant (JAG). The Members of RJCWM felt the most effective way to persuade US$60,000 was part of a larger grant received from the government officials would be to focus on the potential for Recovery Act Edward Byrne Memorial Justice Assistance positive economic benefits derived from the program. The Grant Program (Office of Justice Programs, 2009). emphasis on empirical evaluation was driven by a subcom- FTAP benefitted enormously from the existence and mittee of RJCWM that became known as the academic group. expertise of the Dispute Resolution Center (DRC). The DRC Early on in the formation of RJCWM, participation was had maintained a community victim–offender mediation elicited from local colleges and universities’ departments of program for 23 years prior to the start of the pilot program. criminal justice, sociology, social work, and communication This meant that RJCWM did not have to create a program, studies. A core group of faculty from local universities train mediators, or find money for start-up costs. This enabled coalesced to mindfully consider how best to develop a pro- FTAP’s design team to focus on expansion and integration gram that could be evaluated with regard to the primary out- within the judicial system rather than inception. comes of participant satisfaction, recidivism, and economic By the time of implementation, FTAP could best be impact. These outcomes are commonly found in evaluations described as the result of a unique collaboration between the of restorative programs (Latimer, Dowden, & Muise, 2001). City Attorney’s office at the local District Court, the City The second key to success was that the program should be Commission, a nascent nonprofit organization (RJCWM), presented to the community in a way that would encourage and an established restorative justice nonprofit mediation the community to see value in the program. Proponents of center. The City Attorney’s office functioned as a gatekeeper the restorative alternative are familiar with the need defend to the program; the District Court, somewhat reluctantly, restorative justice from the accusations that such programs allowed it as a diversion program. The City Commission pro- are soft on crime (London, 2013). London describes this as vided the funding, the coalition provided the idea, and the one of the challenges to restorative justice theory and prac- mediation center provided the actual service delivery. The tice. He argues that proponents of restorative justice must program, at the point of implementation, was dramatically reconcile “its advocacy of a nonpunitive response to crime different from the design RJCWM members had initially with the public’s insistence on deterrence and retribution” planned. However, it did present an opportunity for the deliv- (London, 2013, p. 7). ery of restorative justice to the public, and an opportunity for Finally, the program needed to be sustainable. This meant restorative justice to prove that it could bring value to the securing funding and establishing a service provision struc- administration of justice. ture that would perpetuate the program in the absence of its initial leadership. In fact, this was the impetus for the entire coalition. From his experiences with other victims’ rights or Implementation community mediation programs, the Commissioner believed that any program would collapse without strong leadership. The First 9 Months Keeping true to the restorative philosophy, the Commissioner The first 9 months spent establishing FTAP can be described set about cultivating interpersonal relationships guided by as a period of education. Compared with the larger partisan key restorative values such as respect, individual dignity, State government, the City Commissioner’s position afforded inclusion, responsibility, humility, mutual care, reparation, opportunities to affect change with less buy-in from other and nondomination (Pranis, 2007). He routinely met with officials. This was particularly true in the context of a city members of various constituencies (i.e., neighborhood asso- with a weak mayoral system where more power rests with ciations, police, judges, academics, service providers). It was the nonpartisan City Commission. Within the context of a his hope that these individuals would help to sustain the pro- seven-member commission, the City Commissioner needed gram after his departure. only three additional votes to move the restorative practices In developing relatively high-quality relationships, the forward. program’s leader charted a course guided by restorative val- At this early stage, several key parameters for a successful ues; yet, he remained concerned that his efforts to develop program were identified. First, the program would need to be leader–member relationships would devolve after his depar- conceptually integrated into the existing judicial framework ture. He hoped that a partnership with the DRC would be a and it would need to be rigorously evaluated. This would stabilizing factor in the case of his absence. The involvement require access to both the City Attorney’s office and the 61st of the DRC meant that there was a service delivery system in District Court. The benefits of implementing restorative prac- place that was vested in sustaining these efforts. tices would only be realized if the program was both philo- sophically guided and empirically supported. Satisfying The Second 9 Months: Clearing Obstacles victims, holding offenders accountable, and engaging com- munities may each contribute to a fairer system of justice, but The second 9-month period was spent focusing on a few cru- will likely do little to persuade entrenched criminal justice cial elements of the program, including funding stability and Gerkin et al. 5 empirical evaluation. Prudently, these were not separate con- results (Bazemore & Elis, 2007; Hayes, 2007). This remains versations. Leadership, at this early stage, realized that an area for further research, and the data currently being col- although funding would hopefully be found to initiate a pilot lected will hopefully add to this body of scholarship. program, any hope at sustaining that funding would need to be tied to empirical evidence of effectiveness. Education In this period, seed funding was secured through a local denomination to pay a coordinator for 10 hr a week. She was It was approximately 3 months into this second 9-month compensated to schedule meetings, compose email lists, and period that RJCWM contacted the local newspaper and an organize communications. Programs dependent on volun- article about the proposed RJ pilot project appeared. teers to coordinate efforts have the potential to languish and Although this exposed a wider audience to the reality that slide into inaction. After the coordinator moved on, she was such a program was being considered, reactions were mixed. replaced by a local attorney working with the DRC who pro- In an effort to define the scope of the program, RJCWM vided the consistency of communication and determination described the program in several internal documents, and in to pull together disparate elements and keep everything mov- the article, as a program of the 61st District Court. Reaction ing forward. from judges within the Court was swift and critical, as the Meanwhile, RJCWM began to openly recruit new mem- Court itself had little to do with the program’s inception and bers and elicit support for the cause of restorative justice. development. (See section titled “Discussion” for further How this initiative would manifest was still unclear. consideration of this issue.) According to RJCWM meeting minutes, it was about this In addition to some friction with the Court, public reac- time that meetings between coalition leaders, a retired judge, tion focused on common perceptions that such a program and the City Attorney and her staff began. Understanding would be “soft on crime,” a criticism all too familiar to advo- what data were available from these stakeholders was a part cates for restorative justice. From these reactions, it was of these discussions. With an eye toward the future, members clear that educating the community, something the group had of the academic group were already preparing for the evalu- consistently worked at, was going to be a never-ending proj- ation component. ect. As a result of the reaction from numerous fronts, several changes were made to the pilot program. First, the program was no longer to be described as a 61st District Court pro- Evaluation gram. Second, the pilot program was strategically renamed Early on in stakeholder meetings, it was discovered that the the “Fast-Track Accountability Program” (FTAP). This was city made almost no effort to obtain victim input data at all. a linguistic shift, designed to communicate the simplest and Initially, it was thought that to demonstrate increases in vic- most politically viable benefits of the pilot. Use of the term tim satisfaction, baseline data would need to be collected accountability (a staple of restorative justice) was chosen prior to program implementation. Eventually, and at the urg- quite intentionally because of the more punitive connotation. ing of the academic subcommittee of RJCWM board, this This, it was believed, might appease some concern, and also idea was done away with in favor of a pilot program design demonstrated that the need for education about restorative that included both experimental and control groups. justice continued to be necessary. Examples of surveys were solicited from local dispute resolution organizations, academics, and restorative justice- Funding based programs in nearby cities such as Muskegon, Michigan, which had a well-established victim–offender mediation pro- Nearing the end of the second 9 months, two significant gram. Over the following months, these surveys were revised events unfolded. First, an effort was made to acquire a Social to include quantitative measures on items such as fairness, Venture Investors grant through a local community founda- restitution, relationships between participants, satisfaction, tion. The program made it to the final round of consideration, and accountability. In addition, qualitative measures were but ultimately did not receive funding. The potential funders included to assess mediator behaviors that facilitated (or identified the relatively limited scope of the program as a frustrated) mediation resolution, satisfaction, participant sin- major concern. At the same time, however, RJCWM was cerity, fairness, and motivation for participation. The research making steps to solidify itself as an organization, adopting a instruments were designed not only to demonstrate the suc- constitution, bylaws, and establishing a formal board of cess of restorative alternatives in satisfying participants, directors. The Board’s election marks the turning point from increasing restitution, and reducing cost but also to begin to an informal grassroots gathering to a codified, hierarchical articulate clearer understandings of the how and why ques- organization with elected leadership, committees, and more tions that plague restorative justice research. Although sig- clearly formalized and articulated responsibilities. nificant positive results are observed in programs, what is In the final 3-month push toward implementation, the less researched, and therefore less understood, is how and newly minted FTAP relied heavily on the clout of its Board why restorative programs consistently produce those positive (including City Commissioners, a retired judge, dispute 6 SAGE Open resolution professionals, academics, and several well-known responsibility for his actions, causing the other party (the local community members). The relationships built over the victim) to feel revictimized. preceding 18 months proved invaluable in coordinating the There did remain one incentive for participation by eligi- pilot development and implementation. FTAP’s first media- ble offenders. By participating, offenders found that they tion was conducted just short of 2 years after the City could successfully complete the program and in doing so, Commissioner took office. keep the charges from appearing on their record. However, participation in restorative justice is less than ideal when coerced or forced. It continues to be essential for the practi- Program Implementation: Continuing tioners to screen cases appropriately to determine whether Challenges and when an offender is participating for the wrong reason. The actual implementation of FTAP moved rather slowly, In addition to not being able to access individuals who both in terms of receiving the first program participant and pled guilty, FTAP was also unable to help individuals avoid in the number of participants who successfully completed the mechanisms of the traditional process entirely, thereby the process. After little more than a year into the program, taking on the functional approach of an add-on to the exist- a total of 70 cases had been routed into FTAP. Of these, 25 ing system, as opposed to an alternative to the existing sys- cases cleared the double consent needed to begin the pro- tem. The judges of the 61st District Court are held responsible cess, and 15 have successfully completed mediations and for their caseloads by the Supreme Court of Michigan. After contracts. Several aspects of the implementation process a case enters the 61st District Court’s computer system, the have contributed to the slow start: the complexities and Court has a fixed timeline to process it before an automated inflexibilities of the current criminal justice system, and the notice is sent to the Supreme Court. As a result, the judges program design itself. were unwilling to exempt FTAP participants from custom- One of the first major issues with implementation ary court appearances such as the pretrial and settlement emerged at the point of arraignment. At arraignment, the conferences. For example, if John Doe went through FTAP, accused pleads either guilty or not guilty. From a restor- and spent 60 days working on his contract only to renege, ative justice perspective, FTAP was particularly interested the court would be left with precious little time to process in those who acknowledged they were at fault and pled the case when it flushed back into the traditional system guilty. However, these were precisely the people to whom before being censured by the Supreme Court. Consequently, the current system denied access. Individuals who pled individuals enrolled in FTAP have been required to concur- guilty at arraignment were routed through a summary sys- rently attend all the same court proceedings as someone tem that quickly adjudicated and dismissed them. From the involved in the traditional system. This had the unfortunate Court’s perspective, these were ideal cases, as they repre- consequence of negating all the possible cost-savings asso- sented financial income with minimal associated court ciated with avoiding time in a courtroom in front of a judge, costs. Board members of RJCWM and others continue to and instead cost more money per case. From the Court’s per- examine ways to reimagine this process. Instead, FTAP spective, the only way around this would be to move was left with those who pled not guilty at arraignment. entrance into the program precharge, an approach that Some of these individuals likely believe themselves to be RJCWM is actively advocating. innocent and others are simply unwilling to accept respon- Even when cases were assigned to FTAP, establishing sibility for their actions. Either way, they are not interested contact with offenders and victims to offer participation in meeting with a victim to discuss a crime for which they proved difficult. The DRC was frequently unable to make do not feel responsible. In essence, the adversarial struc- any contact whatsoever, and only occasionally been able to ture of the existing system reinforced nonparticipation by satisfy the double consent needed to even begin the process. offenders. Attrition as a result of individuals who do not answer their Unfortunately, the criminal justice system encourages phones, have lost phone service, have moved, or are other- individuals interested in obtaining the best possible outcome, wise unavailable presented a serious obstacle to FTAP. even if they may privately acknowledge guilt, to plead not Sometimes the police records that the DRC relied on to make guilty. Many defense attorneys will counsel their clients to contacts were inaccurate, due to clerical errors or false infor- plead not guilty, initially, to plea bargain for a better deal. mation provided. In addition, it was quite possible that some Admission of guilt is a bargaining chip to be played at the individuals do not return calls because they are, or believed appropriate time in the process. they were, innocent. It was hoped that if/as the program con- This status quo continues to be particularly problematic in tinues, community awareness of the program will make suc- the context of restorative justice wherein offenders are cessful contact more likely. As these issues were being encouraged to accept responsibility for their actions before discovered, other aspects of the project struggled to prepare participation. In fact, typically, an acceptance of responsibil- for service delivery. ity is required before a case will enter victim–offender medi- The evaluation of the program faced numerous challenges. ation, lest an offender shows up and denies participation or FTAP’s founders had been very explicit in their desire to Gerkin et al. 7 incorporate a rigorous evaluation into the design and imple- struggle to be statistically significant, and even statistical sig- mentation of the program. To accomplish this, US$10,000 nificance would be tarnished from an academic standpoint by of the US$60,000 total funding from the city for the project some of the structural problems with the program itself, par- was allocated for research. On August 11, 2009, the City ticularly the exclusion of individuals who plead guilty. At this Commission approved the research funding. The research point, there is not sufficient political capital to make the fun- monies were to be contracted to the Center for Social Research damental changes to the program that would allow it to func- (CSR) at one of the local colleges. The CSR was to help over- tion as it was originally conceptualized. see the research design and data collection in cooperation One of the primary sticking points for the City Attorney’s with the academic committee of RJCWM. office remains the “Willie Horton” concern. In 1987, Horton The academic calendar, however, moves differently was serving a life sentence without parole for murder, when than that of the City or of politicians interested in results. he was released on a weekend furlough program only to The program ultimately began before approval to study it commit assault and rape. The City Attorney’s office does not had been obtained, with the first participants entering in want to be responsible for an individual who is admitted into July 2009. In effect, the program started not only before the FTAP program, and while in diversion offends against the research design had been fully delineated but before either their original victim or someone else. Yet, this is the the program itself had been completely conceptualized. At self-preservation of individuals and offices tethered to the the center of the entire project was the City Commissioner, adversarial system of justice whereby politics serves to dele- with existing relationships to all the spokes of the wheel, gitimize alternative justice approaches. The benefit of having but the spokes had little connection to each other except offenders simultaneously involved in the traditional system the center. With pressure radiating from the center, the is that a no-contact order between the alleged offender and many spokes moved awkwardly out of sync. The research victim is automatically issued, and while hardly capable of design, and a fully coherent concept of the program itself, preventing something from occurring, the order at least lagged behind service delivery, something that continues extends legal protection. Moving the program precharge to cause problems. would mean losing that no-contact order, and accepting the Despite having Human Subject Institutional Review potential political fallout with the community should some- Board (HSIRB) approval, data collection only began to catch thing occur. Members of RJCWM have forwarded the pos- up with service delivery in December 2009. To address some sibility of offering victims the opportunity to file personal of the issues that come from attempting to assemble a data protection orders (PPOs) as an alternative. set from multiple sources, CSR decided to house all the data Ideally, the community would be equally invested in in an online QuickBase database. This has enabled the vari- restorative practices, and agree to accept the possibility of ous agencies to input data relevant to their role in the process potential isolated incidents in favor of the greater good. For into one common, real time receptacle. it to succeed, the community must realize they have a stake Even after finalizing the research design, attempts to in restorative justice, that the justice process belongs to the make changes to FTAP have continued. One that has emerged community (Zehr & Mika, 1998). is a result of difficulties with certain victims. At this point in the program, 75% of the offenders have been individuals Discussion charged with removing property not their own (shoplifting). Many victims of shoplifting are small retail chains. They Several lessons have been learned along that way are easily often have neither the desire nor legal ability to engage in transferable to other locations and efforts to implement mediation with shoplifters. Although this is typical, the restorative justice. First, program designers and implement- response from larger retail chains has been different. In gen- ers should recognize that the government must be both will- eral, the large retail chains have been highly supportive of ing and capable of shifting focus from punishing, to FTAP, some have even started referring their own cases to promoting accountability in the effort to repair harms. This the program and asking for the court’s willingness to dismiss shift represents a major philosophical change, one that the charges. As previously mentioned, certain restorative jus- requires another significant practical change. It requires an tice programs have addressed similar situations through the alternative forum for the administration of justice. Members use of victim impact panels or accountability boards. of RJCWM took on the role of change agents (Rogers, 1995) RJCWM forwarded the possibility of such options to the and toiled in the challenge to encourage the philosophical City Attorney’s office, but the current low volume of cases and practical shift necessary to implement the restorative makes such a move unnecessary. practices. Although this may seem like common sense, it is Given the whittling away of the sample from which data really about the actual assessment of the states’ willingness can be drawn, a fully random experimental design is increas- to make these changes that is so important. Program design- ingly untenable. Although this was one of the Commissioner’s ers and implementers would also do well to be aware that highest hopes for the program, it has proven almost impossi- these changes are particularly difficult within a rights-based ble to implement. Data gleaned from the small sample would and adversarial system (Schiff, 2007). The authors would 8 SAGE Open recommend a thorough review of the diffusion of innovation note. In the early planning stage, participants included literature prior to even designing an innovative program. older, more established researchers and academics. The Restorative justice asks stakeholders to look at crime academics most intimately involved at the point of imple- through a fundamentally different lens, one with which most mentation were all comparatively new to RJCWM, unten- police officers, judges, and lawyers may have only cursory ured, and young. As with any other grassroots effort, familiarity, at best. These justice professionals are asked to decisions are made, projects are completed, and progress is shift their role from that of expertise problem solver to that of realized not by the most highly qualified or positioned, but community facilitator. This shift requires not only the rei- by those that are present. magining of roles (and the norms for behavior associated Members of RJCWM discovered abundant truth in the with those roles) but also the reordering of priorities and words of 61st Court Administrator Josef Soper who restructuring of power (Gerkin, 2008; Schiff, 2007). remarked that programs such as restorative justice are Furthermore, within a restorative framework, justice profes- implemented because people who are in a position to imple- sionals are called not only to support these changes, but also ment them, do (Soper, 2006). In the end, there was no one to lead the paradigm shift as supporters and advocates. on the board of directors for RJCWM, no one of note among Second, those designing and implementing restorative the design team who was realistically in a position to imple- programs should take great care in publicizing and promot- ment the program that was designed. Negotiating the actual ing their programs. Without being taught why and how details of the program to be delivered were not really nego- restorative justice benefits the community and holds offend- tiations. In several instances, RJCWM pushed back against ers accountable, program planners are likely to experience decisions made by those working in the system. Ultimately various levels of resistance. Program developers would do RJCWM had little power or authority to impose their will. well to remember that communities likely have no collective It would certainly be fair to say that there was some naivety memory of a time when they did handle their own problems. among RJCWM about how difficult this task would be. As Community participation in justice has atrophied as the advocates of restorative justice, members of the coalition adversarial system has matured and become more complex. saw the value in implementing restorative practices. Communities are unfamiliar with restorative justice and are However, convincing those on the inside of the system was likely neither ready nor willing to participate. They will far more challenging than expected. likely be uncomfortable at even the thought of being asked to Reflecting on the program that was eventually imple- do so. Others are likely to perceive restorative justice as soft mented, one board member noted, “At the point of imple- on crime and consequently of little value. Education is mentation, several of us realized that what was being important. That includes the education of the state, as well as implemented was so far removed from what we envisioned the public. and what we designed that we were questioning why we Third, funding and evaluation should be a top priority. were even doing it” (P. Gerkin, personal communication, These issues are intertwined and any long term hope for the November 13, 2013). This experience is shared by others program will likely be tied to one or both of these. The pro- who have tried to implement restorative justice (Lemley & gram needs to demonstrate a value. Although saving money Russell, 2002). is always a benefit and one that is likely to generate contin- Ironically, the City Attorney’s office was taking note of ued support, programs that hold offenders accountable, the paradigm shift that was taking place. The City Attorney’s restore victims, and reintegrate offenders will bring the office made some restorative changes before FTAP had even greatest benefits to the participants and the community. been fully conceptualized. Up until they were approached, Finally, program designers and implementers should the City Attorney’s office had virtually no communication count as one of their own, a major player currently working with victims of misdemeanors. The victim-centric vision of within the retributive criminal justice system. Although not FTAP prompted the City Attorney to begin sending out a let- absolutely necessary, implementing a program from the out- ter to all victims of misdemeanors expressing regret and side is difficult. offering opportunities for involvement in the traditional sys- Programs implemented within governmental structures tem. Furthermore, the City Attorney became interested in the frequently face challenges involving postcharge, postpolice experiences of victims within the traditional system. She players such as prosecutors. Furthermore, they frequently began collecting survey data from victims about their satis- struggle to foster both community support and support from faction with the City Attorney’s Office and the processing of victim service providers (Clairmont, 2005). their case. This co-opting of restorative principles for incor- poration into the formal criminal justice system is not new (Johnstone, 2011). Conclusion In Wagga Wagga, New South Wales, restorative practices Flexibility with participants’ changing roles continues to be were inserted directly into the formal criminal justice system both a strength and a challenge for RJCWM. In looking at (Van Ness & Strong, 2002). Police officers, using their dis- the notes from initial meetings, the shift in participants is of cretion, began facilitating conferences with juveniles, adding Gerkin et al. 9 to the options of cautioning juveniles or referring them to the References juvenile court (Van Ness & Strong, 2002). The officers them- Bazemore, G., & Elis, L. (2007). Evaluation of restorative justice. selves became the mediators. Others have suggested that tri- In G. Johnstone & D. W. Van Ness (Eds.), Handbook of restor- als could become more restorative by holding jury ative justice (pp. 397-425). Portland, OR: Willan. deliberations in front of the victim and defendant or by Braithwaite, J. (2002). Restorative justice and responsive regula- tion. Oxford, UK: Oxford University Press. allowing jury members to ask questions during the trial (Van Clairmont, R. (2005). Penetrating the walls: Implementing a sys- Ness & Strong, 2002). tem-wide restorative justice approach in the justice system. In It remains to be seen how the program and RJCWM will E. Elliot & R. M. Gordon (Eds.), New directions in restorative balance the need of a pilot program to be flexible to craft a justice: Issues, practice, evaluation (pp. 245-265). Portland, quality program while maintaining the academic rigor nec- OR: Willan. essary to demonstrate the program’s benefit. It is clear that Daigle, L., & Muftic, L. (2016). Victimology. Thousand Oaks, CA: some very positive steps have been taken in to increase Sage. the restorative character of justice in the community. Forsyth, W., & Becker, C. (2015). Kent County Prosecutors Office: Community stakeholders and politicians came together to 2015annualreport. Retrieved from https://www.accesskent. begin the difficult task of tackling a complex system, and com/Courts/Prosecutor/pdfs/Prosecutor_Annual_Report.pdf obtained the necessary political and financial capital to Gerkin, P. (2008). Participation in victim-offender mediation: Lessons learned from observations. Criminal Justice Review, implement an experimental program that has had real ben- 34, 226-247. efits for those involved. At the same time, it is clear that Hayes, H. (2007). Reoffending and restorative justice. In G. better communication between the City Attorney’s office Johnstone & D. W. Van Ness (Eds.), Handbook of restorative and the 61st District Court and DRC is needed to move the justice (pp. 426-444). Portland, OR: Willan. program toward financial sustainability, and that a solution Hopkins, B. (2004). Just schools: A whole school approach to for the problem of how to replace a no-contact order must restorative justice. Gateshead, UK: Athenaeum Press. be found if this program is to succeed precharge. Moving Johnstone, G. (2011). Restorative justice: Ideas, values, debates forward, RJCWM must find ways to address these issues to (2nd ed.). New York, NY: Routledge. maintain the support of the City Commission. The coalition Latimer, J., Dowden, C., & Muise, D. (2001). The effectiveness of must also be careful to maintain the support and service restorative justice practices: A meta-analysis. Ottawa, Ontario: provision of the DRC, and assist it in expanding its capaci- Department of Justice, Canada, Research and Statistics Division. ties, but substantial progress has been made. The City Lemley, E., & Russell, G. (2002). Implementing restorative Commissioner has said that broken systems do not repair justice by “groping along”: A case study in program evo- themselves overnight. lutionary implementation. The Justice System Journal, 23, As a postscript, the authors would like to acknowledge 157-190. that the political environment, processes, issues, and impli- London, R. (2013). A new paradigm arises. In G. Johnstone cations discussed herein are unique and not necessarily rep- (Ed.), A restorative justice reader (pp. 5-11). New York, NY: licable across contexts. Despite this declaration, this account Routledge. is offered to encourage others in their efforts to move restor- Marshall, T. F. (1996). The evolution of restorative justice in ative justice from vision to reality. Identifying the problems Britain. European Journal on Criminal Policy and Research, and pitfalls delegitimizing restorative processes is in itself 4(4), 31-43. important for egalitarian community building and restoring O’Conner, R. M., Jr. (1997). The role of communication in the lead- ership process. In P. Y. Byers (Ed.), Organizational communi- justice. cation: Theory and behavior (pp. 117-145). Needham Heights, MA: Allyn & Bacon. Declaration of Conflicting Interests Office of Justice Programs. (2009). Retrieved from https://ojp.gov/ The author(s) declared no potential conflicts of interest with respect recovery/ to the research, authorship, and/or publication of this article. Pranis, K. (2007). Restorative values. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of restorative justice (pp. 59-74). Funding Cullompton, UK: Willan. Roche, D. (2003). Accountability in restorative justice. New York, The author(s) received no financial support for the research and/or NY: Oxford University Press. authorship of this article. Rogers, E. (1995). Diffusion of innovations (4th ed.). New York, NY: The Free Press. Notes Schiff, M. (2007). Satisfying the needs and interests of stakehold- 1. Michigan Penal Code 9.133(5) Removing Property Not Own. ers. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of 2. Michigan Penal Code 9.133(4) Malicious Destruction of restorative justice (pp. 228-246). Portland, OR: Willan. Property. Soper, J. (2006). “But does it work?” 2006 evaluation of the 61st 3. Michigan Penal Code 9.133(7) Meddle and Tamper With district court drug court (61st District Court Draft Report). Property. Retrieved from http://www.grcourt.org/research.html 10 SAGE Open U.S. Census Bureau. (2015a). Income and poverty. Washington, Zehr, H., & Mika, H. (1998). Fundamental concepts of restorative DC: Government Printing Office. Retrieved from http://www. justice. Contemporary Justice Review, 1(1), 47-56. census.gov/quickfacts/table/PST045215/2634000 U.S. Census Bureau. (2015b). Race and Hispanic origin. Washington, DC: Government Printing Office. Retrieved from Author Biographies http://www.census.gov/quickfacts/table/PST045215/2634000 Patrick Gerkin is an associate professor in the School of Van Ness, D. (1990). Restorative justice. In B. Galaway & J. Criminal Justice at Grand Valley State University. His primarly Hudson (Eds.), Criminal justice restitution and reconciliation areas of research include restorative justice and white collar (pp. 1-14). Monsey, NY: Criminal Justice Press. crime. Van Ness, D. (1996). Restorative justice and international human John Walsh is an associate professor in the School of Criminal rights. In B. Galaway & J. Hudson (Eds.), Restorative justice: Justice at Grand Valley State University. His research interests International perspectives (pp. 17-36). Monsey, NY: Criminal include community based corrections alternatives and urban jail Justice Press. systems. Van Ness, D., & Strong, K. (1997). Restoring justice. Cincinnati, OH: Anderson. Joseph Kuilema, MSW, PhD, is an assistant professor in the Van Ness, D., & Strong, K. (2002). Restoring justice (2nd ed.). Department of Sociology and Social Work at Calvin College in Cincinnati, OH: Anderson. Grand Rapids, MI. His research interests include international Van Ness, D., & Strong, K. (2013). Encounter. In G. Johnstone social work, social work education, social justice, structural and (Ed.), A restorative justice reader (pp. 82-95). New York, NY: institutional racism, and restorative justice. Routledge. Zehr, H. (1990). Changing lenses. Scottdale, PA: Herald Press. Ian Borton is an associate professor of Communication at Aquinas Zehr, H. (2013). Retributive justice, restorative justice. In G. College. In addition to his work with the Humanities Department, Johnstone (Ed.), A restorative justice reader (pp. 23-35). New he spends his time highly-caffeinated, communication-focused, and York, NY: Routledge. frequently-chasing after his wee daughter, Posie. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png SAGE Open SAGE

Implementing Restorative Justice Under the Retributive Paradigm: A Pilot Program Case Study

SAGE Open , Volume 7 (1): 1 – Feb 1, 2017

Loading next page...
 
/lp/sage/implementing-restorative-justice-under-the-retributive-paradigm-a-K6w0sTHSra
Publisher
SAGE
Copyright
Copyright © 2022 by SAGE Publications Inc, unless otherwise noted. Manuscript content on this site is licensed under Creative Commons Licenses.
ISSN
2158-2440
eISSN
2158-2440
DOI
10.1177/2158244017691562
Publisher site
See Article on Publisher Site

Abstract

This article explores the implementation of a pilot program in restorative justice in a medium-sized Midwestern city. Through an examination of meeting minutes, interviews, and the personal reflections of the authors, this article examines the implementation of a victim–offender mediation program, referred to throughout the article as the Fast Track Accountability Program (FTAP). Presented as a case study, the authors describe the key stakeholders, the process, the obstacles, as well as lessons learned along the way. Particular attention is given to the essential role of strong leadership and to the challenges faced when implementing such a program within the bureaucracy of the current, retributive, criminal justice system. Keywords restorative justice, implementation, victim–offender mediation, policy This research captures something rather unique to the lit- has been adopted in the United States in a limited and at best erature on restorative justice. What follows is a detailed piecemeal fashion. This landscape is largely due to the real- case study of the implementation of a victim–offender ity that restorative justice represents a major shift in both mediation pilot program. The impetus for this project, as philosophy and practice within the United States. well as the sustained effort to achieve the desired outcome Under the current, retribution-based, criminal justice sys- was provided by the Restorative Justice Coalition of West tem, the main focus is on determining guilt and dispensing Michigan (RJCWM). punishments. A criminal act is, by definition, a crime against As a case study, this research offers an inside look into the the state (Lemley & Russell, 2002). Unlike the retributive process of moving restorative justice theory into practice. model, restorative justice defines crimes by the harms cre- The authors describe the implementation process from the ated. The focus of restorative justice is to repair the harm early stages of planning through implementation. Presented caused by crime, making victims whole, holding offenders in a chronological fashion, the authors explore the many accountable, and preventing the occurrence of similar harms challenges faced throughout the process. Major obstacles in the future (Van Ness, 1996; Van Ness & Strong, 1997; include a lack of support from key stakeholders within the Zehr, 1990). criminal justice system, misconceptions surrounding the phi- A popular definition offered by Tony Marshall (1996) losophy of restorative justice, securing program funding, and states that restorative justice is “a process whereby all the stability of leadership among the implementation team. parties with a stake in a particular offence come together to Although the campaign to implement a pilot program in resolve collectively how to deal with the aftermath of the restorative justice was ultimately successful, the final prod- offence and its implications for the future” (p. 37). The pro- uct was far removed from the original vision of RJCWM. cess begins with the realization that crime signifies injury. One goal, then, of restorative justice is to repair that injury, to Restorative Justice Grand Valley State University, Grand Rapids, MI, USA Restorative justice continues to slowly emerge as an alterna- 2 Calvin College, Grand Rapids, MI, USA tive to the more familiar forms of retributive justice in the Aquinas College, Grand Rapids, MI, USA United States. While restorative justice has roots in antiquity Corresponding Author: (Braithwaite, 2002), and continues to serve as one of several Patrick Gerkin, Grand Valley State University, 401 W. Fulton St., Grand competing philosophies of crime and justice in numerous Rapids, MI 49506, USA. countries throughout the world (Van Ness & Strong, 2002), it Email: gerkinp@gvsu.edu Creative Commons CC-BY: This article is distributed under the terms of the Creative Commons Attribution 3.0 License (http://www.creativecommons.org/licenses/by/3.0/) which permits any use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage). 2 SAGE Open make the situation right. Victim(s) and offender(s), along shift some of the ownership in resolving these matters back with other interested parties take part in a process of healing to the primary stakeholders. the injury experienced by the victim (Roche, 2003). Victims Overall, restorative justice represents a clear shift in phi- and offenders are, ideally, participants. They are given a losophy and practice. Restorative justice places victims at degree of ownership in deciding an appropriate response to the center of the process rather than offenders. Instead of a the harm created by the offender’s actions. Restorative jus- focus on determining guilt and dispensing punishments to tice affords victims, offenders, and the community an oppor- offenders, restorative justice seeks to repair the harm caused tunity to participate in creating justice, allowing them to by crime and prevent similar harms in the future (Zehr, insert their voice and regain a sense of control in their lives. 2013). These were the philosophical underpinnings that grounded the attempt to design and implement the pilot pro- gram in restorative justice described herein. Mediation The words “restorative justice” are used as an umbrella term The Beginning to describe a variety of programs that view crime and the response to crime through a restorative lens (Zehr, 1990). Fast Track Accountability Program (FTAP) was a pilot pro- Such programs include victim–offender mediation, family gram implemented in 2010 within a Midwestern city of group conferencing, community reparative boards, sentenc- approximately 200,000 residents. The city is situated in a ing circles, and sentencing panels. county with a population of approximately 600,000. The first victim–offender mediation program emerged in According to the U.S. Census, the city is composed of 59% the 1970s (Van Ness & Strong, 2013). Mediation offered non-Hispanic Whites, 20% African American, 15% Hispanic/ “victims and offenders the opportunity to meet one another Latino, and 2% Asian (U.S. Census Bureau, 2015b). The with the assistance of a trained mediator to talk about the median household income (in 2014 dollars) was US$39,913, crime and come to an agreement on steps toward justice” including some 26% living below the poverty line (U.S. (Van Ness & Strong, 2013, p. 83). Prior to the 1970s, crime Census Bureau, 2015a). During 2010, there were slightly victims were largely ignored by the criminal justice system. more than 4,000 misdemeanor warrants authorized by the However, beginning in the 1970s, the victims’ rights move- county court (Forsyth & Becker, 2015). ment began to push for greater victim participation in the In the case in question, the attempt to integrate restorative justice process (Daigle & Muftic, 2016). It is no coincidence principles into a meaningful program came out of a group of that restorative practices such as mediation emerged during community advocates that banded together to form a restor- this period. ative justice coalition. Ultimately the group settled on the Mediation, in accordance with the principles of restor- name RJCWM. The organic grassroots beginnings of this ative justice, seeks to maximize victim participation in the group mirrored the philosophical ideal that restorative prac- process of achieving justice. Through mediation, the parties tices should emerge from the communities, themselves, most directly affected by the harm (victims, offenders, and rather than being imposed from high-powered leaders the community) gather in search of healing, restoration, (Hopkins, 2004). At the same time, the role of strong leader- accountability, and prevention (Zehr & Mika, 1998). The ship in the formation and maturation of this coalition cannot mediation process is guided by a trained facilitator whose job be underestimated. Without the benefits afforded by the rela- it is to help the participants resolve the situation and to repair tionships fostered and developed by its early leaders, FTAP the harm experienced by the victim. The mediator is there to would never have reached the implementation stage. assist the parties in making their own decisions about how to Although the groundswell for a restorative justice pro- repair the harm. He or she is not there to make these deci- gram ideally comes from the community itself, the reality of sions for the parties. a bureaucracy instituted to uphold a retributive approach One tangible outcome of a victim–offender mediation is a necessitates a pragmatic approach that requires the active written agreement between the parties about how the harm assistance of high-powered leaders. In the case in question, will be repaired. Victims play a central role in the creation of that high-powered leader was a City Commissioner. the agreement, and offenders participate as well (Daigle & The early planners included a rather diverse group of peo- Muftic, 2016). Thus, the participants themselves become the ple. Among the early members of RJCWM, there was a core owners of the justice process and its outcomes. group of local-level politicians, neighborhood association This stands in stark contrast to the offender-centric and leaders, college professors, religious leaders, criminal justice state-dominated criminal justice system that routinely disem- reformers, and interested citizens. Virtually all of them were powers both victims and offenders as the state defines what brought to the table at the request of a City Commissioner justice should be (Zehr, 2013). This system is the result of a who once remarked that he would talk to anyone who would major paradigm shift that moved justice out of the commu- listen and that he intentionally cast a wide net and hoped nity and into a state-run, rights-based model (Van Ness, some people would “stick around” (D. LaGrand, personal 1990). Restorative justice is part of a movement that hopes to communication, December 12, 2012). Gerkin et al. 3 In retrospect, the early planners and designers echoed year in jail. The three categories specifically targeted were themes identified by O’Conner (1997), who suggested that a removing property not your own (commonly referred to as key to the success of restorative justice programs is leader- shoplifting), malicious destruction of property (MDOP), ship that recognizes the unique environmental and social fac- and meddling and tampering. Both removing property and tors that must be accounted for to facilitate development. The MDOP are charged as misdemeanors, when the value of the Commissioner’s experiences in prosecution and private property or the amount of the destruction or injury, respec- practice gave him insight into the environmental and social tively, is less than US$200.00. Under the current system, per- factors at work in the local justice system. sons found guilty of these offenses are punishable by imprisonment for not more than 93 days and/or a fine of not more than US$500.00 or 3 times the value of the property, Program Design whichever is greater. The logic behind selecting these three The City Attorney’s office was identified as the gatekeeper to particular crimes was that they constituted the low hanging the program. This was a strategic decision on behalf of the fruit for the 61st District. On average, there were approxi- leadership of RJCWM. Other “diversion” programs had their mately 500 such cases each year in the 61st District Court. inception within the state of Michigan’s 61st District Court, There were a few additional stipulations put in place by most notably the Drug and Sobriety Court founded in 1999 by the City Attorney’s office. Those eligible for the program Judge Patrick Bowler. In a similar manner to FTAP, the 61st included only those who pleaded not guilty at their arraign- districts’ Drug Court emerged largely as the vision of one man. ment. Additional eligibility criteria set forth by the City As 61st Court administrator Josef Soper observed, “[t]he fact Attorney included not being charged with an associated fel- of the matter is that programs such as drug courts are created ony or violent misdemeanor. However, prior convictions of because people in a position to implement them, do” (Soper, any kind would not prevent offenders from being eligible to 2006). The decision to begin FTAP from outside the Court was participate. guided largely by the fact that the City Attorney shared the FTAP allowed offenders to have their charges appear as Commissioner’s vision, and the judges were less enthused. “dismissed” on their permanent record if they conceded to The lack of enthusiasm on the judges’ part was a point of entering into mediation, negotiating a contract with the vic- much discussion in early planning meetings. The issue was tim, and fulfilling that contract. In other words, this program discussed at numerous board meetings of RJCWM. The gen- functioned as a diversion for eligible participants. Contracts eral consensus of the board was that this program would for the program needed to meet basic criteria established by never be successful without the court’s support. There would the City Attorney, including a sincere apology, full restitu- be no cases to handle. tion, and at least 20 hr of community service. Discussion with officials at the 61st District Court indi- Program designers, optimistically hoping for room to cated that the primary concern from the judges was one of negotiate, raised several concerns. First, they expressed a cost. Once a defendant is charged with a crime, an automatic desire to cast a wider net, but found little room for negotia- timetable is set in motion with the court. To keep a case on tions with the City Attorney’s office. Second, program track, the Court had no choice but to route individuals designers pushed back against the agreement requirements, through both the current system and FTAP at the same time. explaining that the participants should have the freedom to In cases where the offender did not fulfill his or her agree- create the stipulations put forth in the agreement, and noted ment/contract, traditional court processing was the fallback. that although an apology was ideal, a forced or insincere When offenders did fulfill his or her contract, charges were apology can actually lead to revictimization. Finally, pro- dismissed, and the Court had no avenue to assess fees and gram designers pushed back against the not guilty require- costs that would normally offset the costs of all the pretrial ment. RJCWM took this as an opportunity to inform/educate work. Thus, from the Court’s perspective, FTAP represented the practitioners about restorative principles, but again found a cost with no possibility of recoupment. (See section titled little room for negotiations. In the end, the program design- “Discussion” for further consideration of this issue.) ers determined these were necessary concessions to keep Given the less than enthusiastic response from the judges, the pilot program moving forward. (See section titled and the apparent interest of the City Attorney, the City “Discussion” for further consideration of this issue.) Attorney’s office became the obvious choice. Following a Eligible individuals (hereafter referred to as offenders) police report, the City Attorney’s office approves a misde- were to be contacted first and the program’s nature and meanor charge or warrant authorization. This initial step at requirements would be explained. Offenders were to be con- the City Attorney’s office was also selected as an ideal point tacted for consent to participate before victims. This was to screen out individuals who did not meet certain criteria for done to avoid revictimization by encouraging victims to par- FTAP. ticipate in a process only to find the offender unwilling. Only The City Attorney’s office stipulated that all eligible par- after offenders agreed to participate were the victims to be ticipants would be adults who were arrested for misdemean- approached. They too would receive an explanation of the ors where the maximum possible penalty did not exceed 1 program and would be invited to participate. 4 SAGE Open The City Commission approved US$60,000 for the proj- personnel to adopt restorative practices (Hayes, 2007). ect from a Federal Justice Assistance Grant (JAG). The Members of RJCWM felt the most effective way to persuade US$60,000 was part of a larger grant received from the government officials would be to focus on the potential for Recovery Act Edward Byrne Memorial Justice Assistance positive economic benefits derived from the program. The Grant Program (Office of Justice Programs, 2009). emphasis on empirical evaluation was driven by a subcom- FTAP benefitted enormously from the existence and mittee of RJCWM that became known as the academic group. expertise of the Dispute Resolution Center (DRC). The DRC Early on in the formation of RJCWM, participation was had maintained a community victim–offender mediation elicited from local colleges and universities’ departments of program for 23 years prior to the start of the pilot program. criminal justice, sociology, social work, and communication This meant that RJCWM did not have to create a program, studies. A core group of faculty from local universities train mediators, or find money for start-up costs. This enabled coalesced to mindfully consider how best to develop a pro- FTAP’s design team to focus on expansion and integration gram that could be evaluated with regard to the primary out- within the judicial system rather than inception. comes of participant satisfaction, recidivism, and economic By the time of implementation, FTAP could best be impact. These outcomes are commonly found in evaluations described as the result of a unique collaboration between the of restorative programs (Latimer, Dowden, & Muise, 2001). City Attorney’s office at the local District Court, the City The second key to success was that the program should be Commission, a nascent nonprofit organization (RJCWM), presented to the community in a way that would encourage and an established restorative justice nonprofit mediation the community to see value in the program. Proponents of center. The City Attorney’s office functioned as a gatekeeper the restorative alternative are familiar with the need defend to the program; the District Court, somewhat reluctantly, restorative justice from the accusations that such programs allowed it as a diversion program. The City Commission pro- are soft on crime (London, 2013). London describes this as vided the funding, the coalition provided the idea, and the one of the challenges to restorative justice theory and prac- mediation center provided the actual service delivery. The tice. He argues that proponents of restorative justice must program, at the point of implementation, was dramatically reconcile “its advocacy of a nonpunitive response to crime different from the design RJCWM members had initially with the public’s insistence on deterrence and retribution” planned. However, it did present an opportunity for the deliv- (London, 2013, p. 7). ery of restorative justice to the public, and an opportunity for Finally, the program needed to be sustainable. This meant restorative justice to prove that it could bring value to the securing funding and establishing a service provision struc- administration of justice. ture that would perpetuate the program in the absence of its initial leadership. In fact, this was the impetus for the entire coalition. From his experiences with other victims’ rights or Implementation community mediation programs, the Commissioner believed that any program would collapse without strong leadership. The First 9 Months Keeping true to the restorative philosophy, the Commissioner The first 9 months spent establishing FTAP can be described set about cultivating interpersonal relationships guided by as a period of education. Compared with the larger partisan key restorative values such as respect, individual dignity, State government, the City Commissioner’s position afforded inclusion, responsibility, humility, mutual care, reparation, opportunities to affect change with less buy-in from other and nondomination (Pranis, 2007). He routinely met with officials. This was particularly true in the context of a city members of various constituencies (i.e., neighborhood asso- with a weak mayoral system where more power rests with ciations, police, judges, academics, service providers). It was the nonpartisan City Commission. Within the context of a his hope that these individuals would help to sustain the pro- seven-member commission, the City Commissioner needed gram after his departure. only three additional votes to move the restorative practices In developing relatively high-quality relationships, the forward. program’s leader charted a course guided by restorative val- At this early stage, several key parameters for a successful ues; yet, he remained concerned that his efforts to develop program were identified. First, the program would need to be leader–member relationships would devolve after his depar- conceptually integrated into the existing judicial framework ture. He hoped that a partnership with the DRC would be a and it would need to be rigorously evaluated. This would stabilizing factor in the case of his absence. The involvement require access to both the City Attorney’s office and the 61st of the DRC meant that there was a service delivery system in District Court. The benefits of implementing restorative prac- place that was vested in sustaining these efforts. tices would only be realized if the program was both philo- sophically guided and empirically supported. Satisfying The Second 9 Months: Clearing Obstacles victims, holding offenders accountable, and engaging com- munities may each contribute to a fairer system of justice, but The second 9-month period was spent focusing on a few cru- will likely do little to persuade entrenched criminal justice cial elements of the program, including funding stability and Gerkin et al. 5 empirical evaluation. Prudently, these were not separate con- results (Bazemore & Elis, 2007; Hayes, 2007). This remains versations. Leadership, at this early stage, realized that an area for further research, and the data currently being col- although funding would hopefully be found to initiate a pilot lected will hopefully add to this body of scholarship. program, any hope at sustaining that funding would need to be tied to empirical evidence of effectiveness. Education In this period, seed funding was secured through a local denomination to pay a coordinator for 10 hr a week. She was It was approximately 3 months into this second 9-month compensated to schedule meetings, compose email lists, and period that RJCWM contacted the local newspaper and an organize communications. Programs dependent on volun- article about the proposed RJ pilot project appeared. teers to coordinate efforts have the potential to languish and Although this exposed a wider audience to the reality that slide into inaction. After the coordinator moved on, she was such a program was being considered, reactions were mixed. replaced by a local attorney working with the DRC who pro- In an effort to define the scope of the program, RJCWM vided the consistency of communication and determination described the program in several internal documents, and in to pull together disparate elements and keep everything mov- the article, as a program of the 61st District Court. Reaction ing forward. from judges within the Court was swift and critical, as the Meanwhile, RJCWM began to openly recruit new mem- Court itself had little to do with the program’s inception and bers and elicit support for the cause of restorative justice. development. (See section titled “Discussion” for further How this initiative would manifest was still unclear. consideration of this issue.) According to RJCWM meeting minutes, it was about this In addition to some friction with the Court, public reac- time that meetings between coalition leaders, a retired judge, tion focused on common perceptions that such a program and the City Attorney and her staff began. Understanding would be “soft on crime,” a criticism all too familiar to advo- what data were available from these stakeholders was a part cates for restorative justice. From these reactions, it was of these discussions. With an eye toward the future, members clear that educating the community, something the group had of the academic group were already preparing for the evalu- consistently worked at, was going to be a never-ending proj- ation component. ect. As a result of the reaction from numerous fronts, several changes were made to the pilot program. First, the program was no longer to be described as a 61st District Court pro- Evaluation gram. Second, the pilot program was strategically renamed Early on in stakeholder meetings, it was discovered that the the “Fast-Track Accountability Program” (FTAP). This was city made almost no effort to obtain victim input data at all. a linguistic shift, designed to communicate the simplest and Initially, it was thought that to demonstrate increases in vic- most politically viable benefits of the pilot. Use of the term tim satisfaction, baseline data would need to be collected accountability (a staple of restorative justice) was chosen prior to program implementation. Eventually, and at the urg- quite intentionally because of the more punitive connotation. ing of the academic subcommittee of RJCWM board, this This, it was believed, might appease some concern, and also idea was done away with in favor of a pilot program design demonstrated that the need for education about restorative that included both experimental and control groups. justice continued to be necessary. Examples of surveys were solicited from local dispute resolution organizations, academics, and restorative justice- Funding based programs in nearby cities such as Muskegon, Michigan, which had a well-established victim–offender mediation pro- Nearing the end of the second 9 months, two significant gram. Over the following months, these surveys were revised events unfolded. First, an effort was made to acquire a Social to include quantitative measures on items such as fairness, Venture Investors grant through a local community founda- restitution, relationships between participants, satisfaction, tion. The program made it to the final round of consideration, and accountability. In addition, qualitative measures were but ultimately did not receive funding. The potential funders included to assess mediator behaviors that facilitated (or identified the relatively limited scope of the program as a frustrated) mediation resolution, satisfaction, participant sin- major concern. At the same time, however, RJCWM was cerity, fairness, and motivation for participation. The research making steps to solidify itself as an organization, adopting a instruments were designed not only to demonstrate the suc- constitution, bylaws, and establishing a formal board of cess of restorative alternatives in satisfying participants, directors. The Board’s election marks the turning point from increasing restitution, and reducing cost but also to begin to an informal grassroots gathering to a codified, hierarchical articulate clearer understandings of the how and why ques- organization with elected leadership, committees, and more tions that plague restorative justice research. Although sig- clearly formalized and articulated responsibilities. nificant positive results are observed in programs, what is In the final 3-month push toward implementation, the less researched, and therefore less understood, is how and newly minted FTAP relied heavily on the clout of its Board why restorative programs consistently produce those positive (including City Commissioners, a retired judge, dispute 6 SAGE Open resolution professionals, academics, and several well-known responsibility for his actions, causing the other party (the local community members). The relationships built over the victim) to feel revictimized. preceding 18 months proved invaluable in coordinating the There did remain one incentive for participation by eligi- pilot development and implementation. FTAP’s first media- ble offenders. By participating, offenders found that they tion was conducted just short of 2 years after the City could successfully complete the program and in doing so, Commissioner took office. keep the charges from appearing on their record. However, participation in restorative justice is less than ideal when coerced or forced. It continues to be essential for the practi- Program Implementation: Continuing tioners to screen cases appropriately to determine whether Challenges and when an offender is participating for the wrong reason. The actual implementation of FTAP moved rather slowly, In addition to not being able to access individuals who both in terms of receiving the first program participant and pled guilty, FTAP was also unable to help individuals avoid in the number of participants who successfully completed the mechanisms of the traditional process entirely, thereby the process. After little more than a year into the program, taking on the functional approach of an add-on to the exist- a total of 70 cases had been routed into FTAP. Of these, 25 ing system, as opposed to an alternative to the existing sys- cases cleared the double consent needed to begin the pro- tem. The judges of the 61st District Court are held responsible cess, and 15 have successfully completed mediations and for their caseloads by the Supreme Court of Michigan. After contracts. Several aspects of the implementation process a case enters the 61st District Court’s computer system, the have contributed to the slow start: the complexities and Court has a fixed timeline to process it before an automated inflexibilities of the current criminal justice system, and the notice is sent to the Supreme Court. As a result, the judges program design itself. were unwilling to exempt FTAP participants from custom- One of the first major issues with implementation ary court appearances such as the pretrial and settlement emerged at the point of arraignment. At arraignment, the conferences. For example, if John Doe went through FTAP, accused pleads either guilty or not guilty. From a restor- and spent 60 days working on his contract only to renege, ative justice perspective, FTAP was particularly interested the court would be left with precious little time to process in those who acknowledged they were at fault and pled the case when it flushed back into the traditional system guilty. However, these were precisely the people to whom before being censured by the Supreme Court. Consequently, the current system denied access. Individuals who pled individuals enrolled in FTAP have been required to concur- guilty at arraignment were routed through a summary sys- rently attend all the same court proceedings as someone tem that quickly adjudicated and dismissed them. From the involved in the traditional system. This had the unfortunate Court’s perspective, these were ideal cases, as they repre- consequence of negating all the possible cost-savings asso- sented financial income with minimal associated court ciated with avoiding time in a courtroom in front of a judge, costs. Board members of RJCWM and others continue to and instead cost more money per case. From the Court’s per- examine ways to reimagine this process. Instead, FTAP spective, the only way around this would be to move was left with those who pled not guilty at arraignment. entrance into the program precharge, an approach that Some of these individuals likely believe themselves to be RJCWM is actively advocating. innocent and others are simply unwilling to accept respon- Even when cases were assigned to FTAP, establishing sibility for their actions. Either way, they are not interested contact with offenders and victims to offer participation in meeting with a victim to discuss a crime for which they proved difficult. The DRC was frequently unable to make do not feel responsible. In essence, the adversarial struc- any contact whatsoever, and only occasionally been able to ture of the existing system reinforced nonparticipation by satisfy the double consent needed to even begin the process. offenders. Attrition as a result of individuals who do not answer their Unfortunately, the criminal justice system encourages phones, have lost phone service, have moved, or are other- individuals interested in obtaining the best possible outcome, wise unavailable presented a serious obstacle to FTAP. even if they may privately acknowledge guilt, to plead not Sometimes the police records that the DRC relied on to make guilty. Many defense attorneys will counsel their clients to contacts were inaccurate, due to clerical errors or false infor- plead not guilty, initially, to plea bargain for a better deal. mation provided. In addition, it was quite possible that some Admission of guilt is a bargaining chip to be played at the individuals do not return calls because they are, or believed appropriate time in the process. they were, innocent. It was hoped that if/as the program con- This status quo continues to be particularly problematic in tinues, community awareness of the program will make suc- the context of restorative justice wherein offenders are cessful contact more likely. As these issues were being encouraged to accept responsibility for their actions before discovered, other aspects of the project struggled to prepare participation. In fact, typically, an acceptance of responsibil- for service delivery. ity is required before a case will enter victim–offender medi- The evaluation of the program faced numerous challenges. ation, lest an offender shows up and denies participation or FTAP’s founders had been very explicit in their desire to Gerkin et al. 7 incorporate a rigorous evaluation into the design and imple- struggle to be statistically significant, and even statistical sig- mentation of the program. To accomplish this, US$10,000 nificance would be tarnished from an academic standpoint by of the US$60,000 total funding from the city for the project some of the structural problems with the program itself, par- was allocated for research. On August 11, 2009, the City ticularly the exclusion of individuals who plead guilty. At this Commission approved the research funding. The research point, there is not sufficient political capital to make the fun- monies were to be contracted to the Center for Social Research damental changes to the program that would allow it to func- (CSR) at one of the local colleges. The CSR was to help over- tion as it was originally conceptualized. see the research design and data collection in cooperation One of the primary sticking points for the City Attorney’s with the academic committee of RJCWM. office remains the “Willie Horton” concern. In 1987, Horton The academic calendar, however, moves differently was serving a life sentence without parole for murder, when than that of the City or of politicians interested in results. he was released on a weekend furlough program only to The program ultimately began before approval to study it commit assault and rape. The City Attorney’s office does not had been obtained, with the first participants entering in want to be responsible for an individual who is admitted into July 2009. In effect, the program started not only before the FTAP program, and while in diversion offends against the research design had been fully delineated but before either their original victim or someone else. Yet, this is the the program itself had been completely conceptualized. At self-preservation of individuals and offices tethered to the the center of the entire project was the City Commissioner, adversarial system of justice whereby politics serves to dele- with existing relationships to all the spokes of the wheel, gitimize alternative justice approaches. The benefit of having but the spokes had little connection to each other except offenders simultaneously involved in the traditional system the center. With pressure radiating from the center, the is that a no-contact order between the alleged offender and many spokes moved awkwardly out of sync. The research victim is automatically issued, and while hardly capable of design, and a fully coherent concept of the program itself, preventing something from occurring, the order at least lagged behind service delivery, something that continues extends legal protection. Moving the program precharge to cause problems. would mean losing that no-contact order, and accepting the Despite having Human Subject Institutional Review potential political fallout with the community should some- Board (HSIRB) approval, data collection only began to catch thing occur. Members of RJCWM have forwarded the pos- up with service delivery in December 2009. To address some sibility of offering victims the opportunity to file personal of the issues that come from attempting to assemble a data protection orders (PPOs) as an alternative. set from multiple sources, CSR decided to house all the data Ideally, the community would be equally invested in in an online QuickBase database. This has enabled the vari- restorative practices, and agree to accept the possibility of ous agencies to input data relevant to their role in the process potential isolated incidents in favor of the greater good. For into one common, real time receptacle. it to succeed, the community must realize they have a stake Even after finalizing the research design, attempts to in restorative justice, that the justice process belongs to the make changes to FTAP have continued. One that has emerged community (Zehr & Mika, 1998). is a result of difficulties with certain victims. At this point in the program, 75% of the offenders have been individuals Discussion charged with removing property not their own (shoplifting). Many victims of shoplifting are small retail chains. They Several lessons have been learned along that way are easily often have neither the desire nor legal ability to engage in transferable to other locations and efforts to implement mediation with shoplifters. Although this is typical, the restorative justice. First, program designers and implement- response from larger retail chains has been different. In gen- ers should recognize that the government must be both will- eral, the large retail chains have been highly supportive of ing and capable of shifting focus from punishing, to FTAP, some have even started referring their own cases to promoting accountability in the effort to repair harms. This the program and asking for the court’s willingness to dismiss shift represents a major philosophical change, one that the charges. As previously mentioned, certain restorative jus- requires another significant practical change. It requires an tice programs have addressed similar situations through the alternative forum for the administration of justice. Members use of victim impact panels or accountability boards. of RJCWM took on the role of change agents (Rogers, 1995) RJCWM forwarded the possibility of such options to the and toiled in the challenge to encourage the philosophical City Attorney’s office, but the current low volume of cases and practical shift necessary to implement the restorative makes such a move unnecessary. practices. Although this may seem like common sense, it is Given the whittling away of the sample from which data really about the actual assessment of the states’ willingness can be drawn, a fully random experimental design is increas- to make these changes that is so important. Program design- ingly untenable. Although this was one of the Commissioner’s ers and implementers would also do well to be aware that highest hopes for the program, it has proven almost impossi- these changes are particularly difficult within a rights-based ble to implement. Data gleaned from the small sample would and adversarial system (Schiff, 2007). The authors would 8 SAGE Open recommend a thorough review of the diffusion of innovation note. In the early planning stage, participants included literature prior to even designing an innovative program. older, more established researchers and academics. The Restorative justice asks stakeholders to look at crime academics most intimately involved at the point of imple- through a fundamentally different lens, one with which most mentation were all comparatively new to RJCWM, unten- police officers, judges, and lawyers may have only cursory ured, and young. As with any other grassroots effort, familiarity, at best. These justice professionals are asked to decisions are made, projects are completed, and progress is shift their role from that of expertise problem solver to that of realized not by the most highly qualified or positioned, but community facilitator. This shift requires not only the rei- by those that are present. magining of roles (and the norms for behavior associated Members of RJCWM discovered abundant truth in the with those roles) but also the reordering of priorities and words of 61st Court Administrator Josef Soper who restructuring of power (Gerkin, 2008; Schiff, 2007). remarked that programs such as restorative justice are Furthermore, within a restorative framework, justice profes- implemented because people who are in a position to imple- sionals are called not only to support these changes, but also ment them, do (Soper, 2006). In the end, there was no one to lead the paradigm shift as supporters and advocates. on the board of directors for RJCWM, no one of note among Second, those designing and implementing restorative the design team who was realistically in a position to imple- programs should take great care in publicizing and promot- ment the program that was designed. Negotiating the actual ing their programs. Without being taught why and how details of the program to be delivered were not really nego- restorative justice benefits the community and holds offend- tiations. In several instances, RJCWM pushed back against ers accountable, program planners are likely to experience decisions made by those working in the system. Ultimately various levels of resistance. Program developers would do RJCWM had little power or authority to impose their will. well to remember that communities likely have no collective It would certainly be fair to say that there was some naivety memory of a time when they did handle their own problems. among RJCWM about how difficult this task would be. As Community participation in justice has atrophied as the advocates of restorative justice, members of the coalition adversarial system has matured and become more complex. saw the value in implementing restorative practices. Communities are unfamiliar with restorative justice and are However, convincing those on the inside of the system was likely neither ready nor willing to participate. They will far more challenging than expected. likely be uncomfortable at even the thought of being asked to Reflecting on the program that was eventually imple- do so. Others are likely to perceive restorative justice as soft mented, one board member noted, “At the point of imple- on crime and consequently of little value. Education is mentation, several of us realized that what was being important. That includes the education of the state, as well as implemented was so far removed from what we envisioned the public. and what we designed that we were questioning why we Third, funding and evaluation should be a top priority. were even doing it” (P. Gerkin, personal communication, These issues are intertwined and any long term hope for the November 13, 2013). This experience is shared by others program will likely be tied to one or both of these. The pro- who have tried to implement restorative justice (Lemley & gram needs to demonstrate a value. Although saving money Russell, 2002). is always a benefit and one that is likely to generate contin- Ironically, the City Attorney’s office was taking note of ued support, programs that hold offenders accountable, the paradigm shift that was taking place. The City Attorney’s restore victims, and reintegrate offenders will bring the office made some restorative changes before FTAP had even greatest benefits to the participants and the community. been fully conceptualized. Up until they were approached, Finally, program designers and implementers should the City Attorney’s office had virtually no communication count as one of their own, a major player currently working with victims of misdemeanors. The victim-centric vision of within the retributive criminal justice system. Although not FTAP prompted the City Attorney to begin sending out a let- absolutely necessary, implementing a program from the out- ter to all victims of misdemeanors expressing regret and side is difficult. offering opportunities for involvement in the traditional sys- Programs implemented within governmental structures tem. Furthermore, the City Attorney became interested in the frequently face challenges involving postcharge, postpolice experiences of victims within the traditional system. She players such as prosecutors. Furthermore, they frequently began collecting survey data from victims about their satis- struggle to foster both community support and support from faction with the City Attorney’s Office and the processing of victim service providers (Clairmont, 2005). their case. This co-opting of restorative principles for incor- poration into the formal criminal justice system is not new (Johnstone, 2011). Conclusion In Wagga Wagga, New South Wales, restorative practices Flexibility with participants’ changing roles continues to be were inserted directly into the formal criminal justice system both a strength and a challenge for RJCWM. In looking at (Van Ness & Strong, 2002). Police officers, using their dis- the notes from initial meetings, the shift in participants is of cretion, began facilitating conferences with juveniles, adding Gerkin et al. 9 to the options of cautioning juveniles or referring them to the References juvenile court (Van Ness & Strong, 2002). The officers them- Bazemore, G., & Elis, L. (2007). Evaluation of restorative justice. selves became the mediators. Others have suggested that tri- In G. Johnstone & D. W. Van Ness (Eds.), Handbook of restor- als could become more restorative by holding jury ative justice (pp. 397-425). Portland, OR: Willan. deliberations in front of the victim and defendant or by Braithwaite, J. (2002). Restorative justice and responsive regula- tion. Oxford, UK: Oxford University Press. allowing jury members to ask questions during the trial (Van Clairmont, R. (2005). Penetrating the walls: Implementing a sys- Ness & Strong, 2002). tem-wide restorative justice approach in the justice system. In It remains to be seen how the program and RJCWM will E. Elliot & R. M. Gordon (Eds.), New directions in restorative balance the need of a pilot program to be flexible to craft a justice: Issues, practice, evaluation (pp. 245-265). Portland, quality program while maintaining the academic rigor nec- OR: Willan. essary to demonstrate the program’s benefit. It is clear that Daigle, L., & Muftic, L. (2016). Victimology. Thousand Oaks, CA: some very positive steps have been taken in to increase Sage. the restorative character of justice in the community. Forsyth, W., & Becker, C. (2015). Kent County Prosecutors Office: Community stakeholders and politicians came together to 2015annualreport. Retrieved from https://www.accesskent. begin the difficult task of tackling a complex system, and com/Courts/Prosecutor/pdfs/Prosecutor_Annual_Report.pdf obtained the necessary political and financial capital to Gerkin, P. (2008). Participation in victim-offender mediation: Lessons learned from observations. Criminal Justice Review, implement an experimental program that has had real ben- 34, 226-247. efits for those involved. At the same time, it is clear that Hayes, H. (2007). Reoffending and restorative justice. In G. better communication between the City Attorney’s office Johnstone & D. W. Van Ness (Eds.), Handbook of restorative and the 61st District Court and DRC is needed to move the justice (pp. 426-444). Portland, OR: Willan. program toward financial sustainability, and that a solution Hopkins, B. (2004). Just schools: A whole school approach to for the problem of how to replace a no-contact order must restorative justice. Gateshead, UK: Athenaeum Press. be found if this program is to succeed precharge. Moving Johnstone, G. (2011). Restorative justice: Ideas, values, debates forward, RJCWM must find ways to address these issues to (2nd ed.). New York, NY: Routledge. maintain the support of the City Commission. The coalition Latimer, J., Dowden, C., & Muise, D. (2001). The effectiveness of must also be careful to maintain the support and service restorative justice practices: A meta-analysis. Ottawa, Ontario: provision of the DRC, and assist it in expanding its capaci- Department of Justice, Canada, Research and Statistics Division. ties, but substantial progress has been made. The City Lemley, E., & Russell, G. (2002). Implementing restorative Commissioner has said that broken systems do not repair justice by “groping along”: A case study in program evo- themselves overnight. lutionary implementation. The Justice System Journal, 23, As a postscript, the authors would like to acknowledge 157-190. that the political environment, processes, issues, and impli- London, R. (2013). A new paradigm arises. In G. Johnstone cations discussed herein are unique and not necessarily rep- (Ed.), A restorative justice reader (pp. 5-11). New York, NY: licable across contexts. Despite this declaration, this account Routledge. is offered to encourage others in their efforts to move restor- Marshall, T. F. (1996). The evolution of restorative justice in ative justice from vision to reality. Identifying the problems Britain. European Journal on Criminal Policy and Research, and pitfalls delegitimizing restorative processes is in itself 4(4), 31-43. important for egalitarian community building and restoring O’Conner, R. M., Jr. (1997). The role of communication in the lead- ership process. In P. Y. Byers (Ed.), Organizational communi- justice. cation: Theory and behavior (pp. 117-145). Needham Heights, MA: Allyn & Bacon. Declaration of Conflicting Interests Office of Justice Programs. (2009). Retrieved from https://ojp.gov/ The author(s) declared no potential conflicts of interest with respect recovery/ to the research, authorship, and/or publication of this article. Pranis, K. (2007). Restorative values. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of restorative justice (pp. 59-74). Funding Cullompton, UK: Willan. Roche, D. (2003). Accountability in restorative justice. New York, The author(s) received no financial support for the research and/or NY: Oxford University Press. authorship of this article. Rogers, E. (1995). Diffusion of innovations (4th ed.). New York, NY: The Free Press. Notes Schiff, M. (2007). Satisfying the needs and interests of stakehold- 1. Michigan Penal Code 9.133(5) Removing Property Not Own. ers. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of 2. Michigan Penal Code 9.133(4) Malicious Destruction of restorative justice (pp. 228-246). Portland, OR: Willan. Property. Soper, J. (2006). “But does it work?” 2006 evaluation of the 61st 3. Michigan Penal Code 9.133(7) Meddle and Tamper With district court drug court (61st District Court Draft Report). Property. Retrieved from http://www.grcourt.org/research.html 10 SAGE Open U.S. Census Bureau. (2015a). Income and poverty. Washington, Zehr, H., & Mika, H. (1998). Fundamental concepts of restorative DC: Government Printing Office. Retrieved from http://www. justice. Contemporary Justice Review, 1(1), 47-56. census.gov/quickfacts/table/PST045215/2634000 U.S. Census Bureau. (2015b). Race and Hispanic origin. Washington, DC: Government Printing Office. Retrieved from Author Biographies http://www.census.gov/quickfacts/table/PST045215/2634000 Patrick Gerkin is an associate professor in the School of Van Ness, D. (1990). Restorative justice. In B. Galaway & J. Criminal Justice at Grand Valley State University. His primarly Hudson (Eds.), Criminal justice restitution and reconciliation areas of research include restorative justice and white collar (pp. 1-14). Monsey, NY: Criminal Justice Press. crime. Van Ness, D. (1996). Restorative justice and international human John Walsh is an associate professor in the School of Criminal rights. In B. Galaway & J. Hudson (Eds.), Restorative justice: Justice at Grand Valley State University. His research interests International perspectives (pp. 17-36). Monsey, NY: Criminal include community based corrections alternatives and urban jail Justice Press. systems. Van Ness, D., & Strong, K. (1997). Restoring justice. Cincinnati, OH: Anderson. Joseph Kuilema, MSW, PhD, is an assistant professor in the Van Ness, D., & Strong, K. (2002). Restoring justice (2nd ed.). Department of Sociology and Social Work at Calvin College in Cincinnati, OH: Anderson. Grand Rapids, MI. His research interests include international Van Ness, D., & Strong, K. (2013). Encounter. In G. Johnstone social work, social work education, social justice, structural and (Ed.), A restorative justice reader (pp. 82-95). New York, NY: institutional racism, and restorative justice. Routledge. Zehr, H. (1990). Changing lenses. Scottdale, PA: Herald Press. Ian Borton is an associate professor of Communication at Aquinas Zehr, H. (2013). Retributive justice, restorative justice. In G. College. In addition to his work with the Humanities Department, Johnstone (Ed.), A restorative justice reader (pp. 23-35). New he spends his time highly-caffeinated, communication-focused, and York, NY: Routledge. frequently-chasing after his wee daughter, Posie.

Journal

SAGE OpenSAGE

Published: Feb 1, 2017

Keywords: restorative justice; implementation; victim–offender mediation; policy

References