The lead story in last weekend’s New York Times Magazine is about a young man who shot and killed his girlfriend, turned himself in, and largely because of forgiveness and empathy from her family saw his sentence partially influenced by a legal process called restorative justice. I read the article with interest, since I’m a big fan of restorative justice practices and think they should be instituted more widely across the United States. But this story as an illustration for restorative justice troubles me.
The meaning of restorative justice varies depending on who you ask, but generally, it’s understood to be a community-based justice program that centers the needs of victims while also treating perpetrators like human beings who should be participants in the justice process and not simply recipients of it. Instead of simply trying to punish offenders and promote consistent legal conclusions (which is how the American criminal justice system is largely focused), restorative justice seeks to determine how the victim, perpetrator and community can come to a just outcome — what the victim needs to feel whole, how the perpetrator can make amends, and how the community can support the individuals and the justice process. It encourages accountability from the perpetrator instead of just punishment. It centers the needs of the victim while also encouraging (but not requiring) forgiveness. The U.S. justice system (and many others) situate crime as not just an offense against an individual victim, but an offense against the state — that’s why in criminal cases, it’s The People vs. The Criminal, not The Victim vs. The Criminal (we have a civil system that allows for cases wherein an individual who feels wronged can bring the person/entity he believes to have wronged him to court). Restorative justice sees crime as an act against an individual and a community, not against the state. The idea is restoration — restore the harm, and marginalize the perpetrator as little as possible.
The theory behind that is that social ties and strong communities, coupled with accountability and acceptance, lead to lower crime rates. And that seems to be right: Communities in the U.S. where restorative justice is used see lower recidivism rates. Restorative justice is used around the globe, often with very good results. And while there are some Christian groups who claim that restorative justice originated in the Bible, I’ve most often seen the theories behind it and many of the practices to carry out those theories attributed to Native American communities, often built upon by prison abolitionists and communities of color — the communities hit the hardest by increased policing, punitive drug laws and the set of policies that Michelle Alexander summarizes as serving as “The New Jim Crow” (read her book; if you can’t read the book, at least read the Wikipedia entry).
Restorative justice is a good and powerful tool — often much better, in my opinion, then the mainstream American criminal system. That said, it’s a tool, and it’s a tool that’s being used in a racist, sexist culture. Which is why I cringe a little bit when I see it used in cases like the one illustrated by the Times, which is a domestic violence murder. Don’t get me wrong, the story is extraordinary, and I support the Grosmaires going where their consciences guide them. I worry, though, because unlike in crimes like stealing someone’s bike or selling drugs, victims of domestic violence (and sexual assault) are often encouraged to forgive their abusers, especially if the abuser is a “good guy.” The murderer in the Times story, Conor McBride, had previously hit his girlfriend Ann Grosemaire, apparently several times before the day he finally shot her. That’s not surprising to any of us, since we know domestic violence usually escalates and isn’t a one-time blow-up. Now Ann is dead, and her parents use restorative justice methods to work through their forgiveness of Conor and to encourage the DA to give him 10-15 years instead of life in prison. I worry what would have happened, though, if Ann was alive. She’d be in a community of people who all agree that Conor is a good kid who loves her, and who all agree that he should be forgiven, even though what he did was a terrible thing. In that particular setting, will she really have the power to assert her own needs in the restorative justice process? Will her own abilities to believe that what Conor did was wrong and ideally to leave him be supported?
Restorative justice ideally centers a victim’s needs. But what of the many victims (usually women) who are intimately involved with the people (usually men) who commit crimes against them? What of the fact that abusers are often expert manipulators, and rely on community support and “but he’s such a nice guy!” to get away with repeated acts of violence? What of the inherent power imbalance between the victim and the abuser? What of community norms that are often accepting of abuse, or that see it as a personal problem and not a criminal act of violence?
I do think there is much room for rehabilitation of abusers; I think people can change in wonderful, radical ways and I believe in giving them that chance. But not on the backs of victims. And while I don’t believe that restorative justice does that, I do think it’s operating in an imperfect universe.
The Times Magazine story is truly inspirational and lovely. But the real victim — the girl who was murdered — is conveniently absent. Her voice is channeled through her father, whose religion nudges him toward the forgiveness angle. The outcome ends up being what I think is a good one: Conor gets 15-20 years in prison, which is a very long time, and goes through the process of explaining his crime and listening to the anguish it caused. I would imagine that’s a more painful process than a trial; I imagine it removes the ability of the accused to feel angry or victimized by the process. And so in this case it worked out. But would it in others, where the victim was alive?
There are pieces of the article that are worth highlighting — particularly this, from attorney Sujatha Baliga, who was abused by her father and decided to be an attorney to put criminals in prison until she had an epiphany about forgiveness, love and justice:
Anger is killing me, but it motivates my work. How do you work on behalf of oppressed and abused people without anger as the motivating force?
It’s a statement that I imagine will ring true for many of us who do social justice work. There is so much to be angry about. How do we stay loving in the face of so much awfulness? Isn’t anger sometimes a good and just motivator? Don’t we deserve to be angry? How can you do this work without anger?
(I don’t know).
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