United States: Regulating Restorative Justice: What Arbitration Teaches Us About Regulating The Restorative Process In Criminal Courts

INTRODUCTION

My first encounter with restorative justice occurred in 2016, when I was working as a student researcher in Kigali, Rwanda. I had been employed by a local non-profit whose mission was to foster peace and reconciliation after the Rwandan genocide of 1994. My task was to interview survivors and perpetrators of the Rwandan genocide about their experience of post-conflict reconciliation. With the help of a translator, I talked to survivors and perpetrators in pairs. In the morning, I would hear the survivor's account of how the perpetrator had killed their family members, and why they nonetheless offered that person forgiveness. In the afternoon, I would hear the perpetrator's account of murder and remorse. The day concluded with a meal, shared by all parties.

Growing up in a retributive justice system in the United States, I had no frame of reference for what I was seeing. According to my sense of justice at the time, a murderer was to be tried by a judge, sentenced according to the law, and imprisoned for the requisite statutory period. However, such a scheme was not possible after the Rwandan genocide, since there were more killers than the traditional legal system could possibly process.¹ In lieu of a traditional court of law, the Rwandan people opted for a community-based court called "gacaca" to bring justice to the genocidaires.² In these gacaca courts, the genocidaires were sentenced by fellow community members, many of whom had no formal legal training.³ Punishments typically consisted of prison time, and/or activities designed to reintegrate the perpetrators into the community, such as repairing roads and public buildings and constructing new homes for the survivors.⁴

This process, wherein perpetrators and victims participate in community-based reconciliation, strongly resembles restorative justice. At its core, restorative justice is a community-centered approach to resolving crime and conflict that rehabilitates the offender while reconciling them to their victims and the community.⁵ This approach is markedly different than the criminal justice system in the United States, which isolates perpetrators as a form of punishment. Under a restorative justice approach, the offender, the victim, and all affected community members generate their own agreement about how to fix the problem that brought the offender to court in the first place.

A. THE RESTORATIVE JUSTICE COMMUNITY COURT

After leaving Rwanda and returning to the United States, I dedicated myself to seeking out similarly restorative models for crime and punishment within the American legal system. In 2017, I started my two-year tenure as the intern for the presiding judge of the "Restorative Justice Community Court," or "RJCC" in Chicago, Illinois. The RJCC is built on the same philosophy of restorative justice as the gacaca courts. Instead of simply giving prison time to those who break the law, the RJCC uses restorative justice to repair the harm and prevent it from reoccurring.⁶ The RJCC's process is somewhat akin to victim-offender mediation, wherein the perpetrator and victim find a mutually satisfying way to repair the harm that was caused through the help of a skilled facilitator called a "circle keeper."⁷ However, a restorative justice court process is different than mediation because it is more community focused.⁸ At the RJCC and other restorative justice courts, the defendant and victim are not the only ones in the room. Any community member who was affected by the crime is encouraged to participate in the conflict-resolution process and keep the offender accountable for repairing the harm that they caused.⁹

Unlike the gacaca courts, the RJCC contains more trappings of a traditional courtroom. The RJCC is an official court of record in the Circuit Court of Cook County. This means that (1) the RJCC is part of the official network of taxpayerfunded courtrooms in Cook County, (2) its proceedings are recorded by a court reporter and available for public review, and (3) the court is led by a full-time county judge who is appointed by Cook County Chief Judge Timothy Evans. The RJCC is in session once per week, and it meets in its own building located in the community in which it serves.¹⁰ The court is staffed by local community members, as well as all of the traditional players in a Cook County courtroom, including the Cook County State's Attorney, Cook County Public Defender's Office, Cook County Social Services, and Cook County Sheriffs.¹¹

The RJCC operates much like a traditional diversion court in that it offers qualifying participants an alternative to traditional courtroom prosecution.¹² In order to participate in the RJCC, a participant must be eighteen to twenty-six years old, have been charged with a nonviolent felony or misdemeanor,¹³ reside in the community in which the RJCC is located, have nonviolent criminal history, and accept responsibility for the harm they caused.¹⁴ Once all of these requirements are met, the defendant may opt-in to the process, and the victim will also have the opportunity to participate.¹⁵

From this point on, the conflict resolution process is most akin to victim-offender mediation. The defendant, victim, and all affected community members will participate in a series of "peace circles," which are conversations led by a skilled facilitator about the harm that was caused and how to repair it.¹⁶ Lawyers, judges, and other legal personnel are not included in this part of the process. Once the group reaches consensus about the actions that should be taken to repair the harm – which may include restitution, job training, substance use counseling, an apology, and more – they will write them up as recommendations in a "Repair of Harm" agreement.¹⁷ Once approved by the judge, the Repair of Harm Agreement becomes the legal substitute for the defendant's sentence. If the defendant successfully complies with all of the terms of the agreement, their case will be dismissed. If they do not, their case will be transferred back to a traditional courtroom for adjudication.¹⁸

To view the full article click here

Footnotes

1 See Justice Compromised, HUMAN RIGHTS WATCH 13 (May 31, 2011), https://www.hrw.org/report/2011/ 05/31/justice-compromised/legacy-rwandas-community-based-gacaca-courts [https://perma.cc/QM65-RTG3].

2. See id. at 14-15.

3. See id. at 15, 17-18.

4. See id. at 73-74, 77-78.

5. See Howard Zehr, LITTLE BOOK OF RESTORATIVE JUSTICE 2-3 (2014).

6. See Press Release, State of Illinois Circuit Court of Cook County, Restorative Justice Community Court launched in Avondale – the first on the Northwest Side, (Aug. 5, 2020), http://www.cookcountycourt.org/ MEDIA/View-Press-Release/ArticleId/2781/Restorative-Justice-Community-Court-launched-in-Avondalethe-first-on-the-Northwest-Side [https://perma.cc/5DJW-DWE7].

7. "Circle keeper," "restorative justice facilitator," and "facilitator" will be used interchangeably.

8. According to the American Bar Association, mediation is "a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute." Mediation, American Bar Association, https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/ mediation/ [https://perma.cc/A6TK-4FN5] (lasted visited Feb. 15, 2021).

9. See K. Hope Harriman, Restoring Justice: An Analysis of the North Lawndale Restorative Justice Community Court, THE UNIVERSITY OF CHICAGO 51 (Apr. 17, 2018), https://knowledge.uchicago.edu/record/ 2525?ln=en [https://perma.cc/W8E5-5L57].

10. Id. at 20

11. Id. at 56

12. For criminal proceedings, a diversion court is a criminal process that addresses a criminal case outside of the traditional criminal justice system. Typically, a defendant in a diversion court will have their charges dropped if they agree to the terms of the diversion program, which could include terms such as drug treatment, mental health counseling, and more. See Cornell Law School, Diversion, Legal Information Institute, https:// www.law.cornell.edu/wex/diversion [https://perma.cc/7QM7-5PGL] (last visited Feb. 15, 2021).

13. See K. Hope Harriman and Sarah Staudt, Rethinking Restorative Justice (forthcoming 2022) (manuscript at 30-32) (on file with author) (discussing the possibility and limitations of the RJCC processing violent crimes).

14. See Press Release, State of Illinois Circuit Court of Cook County, Restorative Justice Community Court launched in Avondale – the first on the Northwest Side (Aug. 5, 2020), http://www.cookcountycourt.org/ MEDIA/View-Press-Release/ArticleId/2781/Restorative-Justice-Community-Court-launched-in-Avondale-thefirst-on-the-Northwest-Side [https://perma.cc/5DJW-DWE7].

15. If there is no victim, a "surrogate victim" may be elected to fill this vacancy. See K. Hope Harriman and Sarah Staudt, Rethinking Restorative Justice (forthcoming 2022) (manuscript at 23) (on file with author).

16. See National Juvenile Justice Network, Restorative Justice Community Court, leaflet, https://www.njjn. org/uploads/digital-library/07.2017-RJCC%20Brochure%20FINAL%20copy.pdf [https://perma.cc/F7JA-48AC] (last visited Feb. 15, 2021).

17. Id.

18. See K. Hope Harriman, Restoring Justice: An Analysis of the North Lawndale Restorative Justice Community Court, THE UNIVERSITY OF CHICAGO 51 (Apr. 17, 2018), https://knowledge.uchicago.edu/record/ 2525?ln=en [https://perma.cc/W8E5-5L57].

Originally published by Georgetown Law

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.