by Hon. Peter B. Krupp and Hon. Michelle D. Fentress
Restorative justice (“RJ”) is a victim-centered process that provides an alternative way for a person who has committed harm to be accountable and to repair the harm they have caused. It is a process that comes from indigenous and native cultures, using circles to discuss the harm that was caused and how the harm might be repaired. RJ offers a transformative alternative or complement to the usual tools of the criminal justice system with its focus on what survivors need and the trauma that they and others have suffered.
With the support of the Supreme Judicial Court’s Committee on Restorative Justice, the trial court will soon embark on pilot programs in Suffolk and Plymouth Counties to offer an RJ process in appropriate criminal cases. This article explores briefly the value RJ can bring to the traditional criminal legal system, the origins of the trial court’s pilot programs, and the way the pilot programs will work.
Listening to Survivors
Our criminal legal system routinely offers conviction and punishment (probation, incarceration, and restitution) as the available tools for holding people accountable for harm they have caused. It is currently the best we can offer survivors of criminal conduct. But our adversary system is a punitive, cumbersome process that often retraumatizes harmed parties and frequently fails to meet their needs.
If a victim of a crime calls the police and a person is apprehended, the victim can expect to wait months or years for the resolution of the case. They must silently attend court proceedings that are not always sensitive to their needs. They may face intimidation, embarrassment, or frustration. Sometimes they must testify at a trial; they may provide a victim impact statement, although often after the parties have discussed a possible resolution of the case with the judge; and they may have to endure the uncertainty of an appeal. When victims do participate, their ability to speak and the way that they participate in legal proceedings may be limited by rules of evidence or other constraints. See, e.g., G.L. c. 279, § 4B (Notice to victim of sentencing proceedings; oral or written statements). This process, however well meaning, may force survivors to re-live difficult, painful events to get to an often unsatisfying result.
To be sure, harmed parties come from all kinds of backgrounds and want a range of outcomes, but the type of accountability our current system offers is not the type of accountability that all survivors want. As Danielle Sered has written, survivors of criminal conduct usually want (i) validation that what happened to them is wrong; (ii) answers to questions related to the crime; (iii) an opportunity to speak, have their voices heard, and have an impact on the outcome; and (iv) access to resources they need to heal and be safe. See Danielle Sered, Until We Reckon, 23-30 (2019). Our current system usually does not provide survivors with answers, often does not meaningfully consider their needs, and frequently does not make them feel safer.
As Howard Zehr has described, our current criminal legal system focuses on the moral or legal failings of the offender. It asks: What laws have been broken? Who did it? And what do they deserve? By focusing on victims and the harm they have suffered, RJ asks: Who has been hurt? What are their needs and how can they be met? And who has the responsibility to meet those needs? See Howard Zehr, The Little Book of Restorative Justice, 31 (revised 2015).
Considering a Restorative Model
RJ models have been discussed and implemented in the United States over the last several decades. Programs have been developed in New York, Vermont, Washington, Wisconsin, Alaska, and North Carolina, to offer RJ processes in various forms in criminal cases; and, of course, indigenous communities have used these practices for centuries. See, e.g., Healing to Wellness Program through the Penobscot Nation Tribal Court, described at https://www.penobscotnation.org/departments/tribal-court/penobscot-indian-nation-healing-to-wellness-court/; Michelle Chen, Restorative Justice in Indian Country, Dissent Magazine (April 16, 2021). Research suggests that RJ processes tend to decrease recidivism compared to more traditional punitive alternatives.
In Massachusetts, for more than a decade, men incarcerated at MCI-Norfolk and other Department of Correction (“DOC”) facilities, with the assistance of outside facilitators, have been using RJ circles and practices to reduce and de-escalate violence within the DOC. Participants also explore the harm they have caused and try to make amends for their conduct. Some of the most remarkable “circle-keepers” have been trained at MCI-Norfolk. In Franklin County, an RJ program ran successfully for 20 years because Lucinda Brown, the Community Relations Coordinator at the Greenfield District Court, was committed to the idea and organized and trained community panels. And for the last several years, the federal district court in Boston has been running the RISE Program, which has successfully offered RJ circle practices with appropriate defendants post-plea and pre-sentencing.
Encouraged by these programs, about a year ago, Chief Justice Kimberly S. Budd convened a Supreme Judicial Court Committee on Restorative Justice with the charge of devising and overseeing a restorative justice pilot program in the trial court. The Committee is made up of judges, prosecutors, defense lawyers, and representatives from probation, victim services, and the Executive Office of Public Safety and Security. Since its inception, the Committee has developed an outline for the pilot program, conducted training and outreach in the pilot locations, and recently awarded a contract to an outside vendor to provide restorative justice services.
District Attorneys Kevin Hayden in Suffolk County and Timothy Cruz in Plymouth County have agreed to have their offices participate in the pilot. As a result, the pilot program will be offered in BMC-Roxbury, Suffolk Superior Court, Brockton District Court, and Plymouth Superior Court.
The Pilot Program
The RJ pilot programs will be voluntary, victim-centered, confidential, and controlled by the community. A person who has caused harm will be eligible to participate in the pilot program only if the district attorney, any named victim, and the responsible party consents. No criminal charges will be categorically ineligible. Much will depend on how a harmed party wishes to proceed and the extent to which the responsible party is prepared to accept responsibility and be accountable. If a harmed party consents to the case proceeding with an RJ process, the harmed party need not participate, but may participate as much or as little as they would like.
A person will be eligible to enter the pilot program pre-plea or pre-sentencing. During the time the responsible party is participating in the RJ process, the criminal case will effectively be stayed. There will be no adverse impact on a defendant who chooses not to participate in RJ or who drops out of the pilot program without completion.
The RJ process will be run by an outside vendor with capabilities to relate to impacted parties and harmed parties in a trauma-informed way, that is, to minimize re-traumatization, recognize the many manifestations of trauma in both survivors and responsible parties, and support healing in a holistic way. Initially, the vendor will meet with the parties as much as necessary to make sure the vendor understands their needs. No one size will fit all. The RJ process will be tailored to each case.
Assuming the process proceeds, the vendor will assemble RJ circles, composed of the responsible party, people from that party’s community, community members, the impacted party or others who have been harmed (or appropriate surrogates), others who have caused harm, and trained “circle-keepers.” Circles may focus on the harm that was caused, the ripples of harm to others, the needs of the harmed party, and the ways the responsible party might make amends; or may explore other relevant topics depending on the individual case. This will be hard work. It may involve 4, 6, or 12 circles, and span 12 weeks or 12 months, with much work by the responsible party in between. The meetings will occur in the community, not a courthouse.
Because RJ circles do not work without genuine honesty and truthful disclosures, ensuring the confidentiality of what is said in the circle is crucial. As a result, nothing said in the RJ process will be able to be used against the responsible party.
The community, in the form of the circle, will determine whether the responsible party has completed the process. Completion is difficult to forecast, will be different in different cases, and almost always will be difficult to measure. It will usually involve an alternative method of being accountable. Assuming the responsible party completes the RJ process, that information and the progress the responsible party has made – not the content of the discussion in the circles – will be shared with the court and will be taken into account in resolving the case.
The pilot program will start small, with a manageable number of cases gradually entering the RJ process. Because this is a pilot, we expect different district attorneys, courts, and communities will approach these cases differently. We hope to learn from this experimentation. This will be a three-year pilot. We believe the outcome after three years will indicate that RJ belongs in our courts as a powerful alternative tool to resolve criminal cases and to provide harmed parties and the community greater satisfaction, an improved sense of safety, and more confidence in the criminal legal process.
Hon. Peter B. Krupp, an Associate Justice of the Superior Court, is Vice Chair of the Supreme Judicial Court’s Committee on Restorative Justice.
Hon. Michelle D. Fentress sits in Brockton District Court. She co-chairs the District Court Race and Ethnic Fairness Committee and is a member of other court-wide committees.
