Paul Tullis wrote a fascinating article for the New York Times Magazine about restorative justice and its use in the “plea agreement” (aka plea bargain) stage (prior to conviction and sentencing) of a murder case. Can Forgiveness Play a Role in the Criminal Justice System? describes a restorative process at the plea agreement stage in a Florida murder case where a 19 year old admittedly shot and killed his girlfriend.

The NYTs article, and later a Today show about the case, has worried some including Ted Wachtel, educator and founder of the International Institute for Restorative Practices, who discussed his concerns for the Huffington Post’s, Restorative Justice is Not Forgiveness. Ted has been a strong and very effective restorative justice promoter for 20 years and his Huffington Post article nicely describes restorative principles.

Putting aside any “forgiveness controversy,” Tullis’s article made an important contribution by describing how restorative justice can be used at the plea agreement stage of a murder case, by vividly tell[ing] the story from the perspectives of the different parties that took part in the process” as pointed out by Hadar Aviram, law professor at the University of California Hastings College of Law in San Francisco.

Restorative justice is used for serious crimes including murder (it is especially effective for this level of serious felonies), but usually it’s only used after a person has pleaded guilt. Last year the Oprah Winfrey Network did documentaries of 4 cases concerning homicides that were held in prisons (I facilitated one).

Face-to-face restorative justice meetings are almost always used after conviction or for diverting cases before they go to the criminal justice system or trial for resolution. I’ve never heard of a murder case being diverted, neither had Tullis who wrote, “no one I spoke to had ever heard of restorative justice applied for anything as serious as murder” for diversion. Yet, it would be possible to divert a murder case to a restorative process, and maybe any that have been diverted have not been discussed because of the potential for political backlash (e.g. alleged failure to be “tough on crime.”)

Restorative processes are especially powerful because they give individuals some control in participating (or choosing not to participate) in addressing how they’ve been affected by crime and what might help them deal with the consequence and possibly heal.

The failing of the criminal justice system to allow the individuals directly affected by a crime to have a role in a process addressing their suffering was discussed by Nils Christie in his seminal 1976 published speech: Conflict as Property, (1977, British Journal of Criminology).

In arguing that individuals should be allowed to participate in addressing their conflicts, Christie points out that conflict is valuable for human development. “Conflicts,” he says, “ought to be used, not only left in erosion. And they ought to be used, and become useful, for those originally involved in the conflict” (1977, p. 1).

Christie further explains: conflicts represent a potential for activity, for participation. Modern criminal control systems represent one of the many cases of lost opportunities for involving citizens in tasks that are of immediate importance to them. Ours is a society of task-monopolists. The victim is a particularly heavy loser in this situation. Not only has he suffered, lost materially or become hurt, physically or otherwise. And not only does the state take the compensation. But above all he has lost participation in his own case.”

Restorative processes give harmed people a voice in expressing their feelings, in trying to cope, and maybe even in working to find some meaning in their loss and suffering.

It is not a radical new idea to allow victims the opportunity to say what they want at sentencings. In federal, and most state felony cases, before a defendant is sentenced, judges are required to consider “pre-sentence reports.” Usually probation officers or other officials who make the reports speak directly with the parties, including crime victims, to determine how they’ve been affected by the crime, which is then reported to the judge before sentencing. Also most states provided for “victim impact statements” where harmed people can speak directly to a judge in court at the hearing before the judge delivers the sentence. Here the parties had the opportunity for more meaningful participation.

In this case, the defendant pleaded guilty, and wanted to participate in a restorative meeting prior to being sentenced. But it was the parents of his murdered girlfriend, Andy and Kate Grosmaire, who initiated movement for the restorative process after learning about it from prison Chaplin Allison DeFoor. The defendant’s parents helped tremendously too to make a restorative conference eventually happen.

Sujatha Baliga, a restorative lawyer and facilitator, from California did a great service in this case, and in forging a new path for using restorative justice. The defendant’s lawyer, Greg Cummings, who participated with him in the restorative conference, was also thoughtful in helping his client participant. Also the Florida prosecutor, Jack Campbell, did the right thing in participating in the restorative conference to the extent that he did. Although he did not agree to the plea bargain terms that Kate and Andy Grosaire wanted, he listened to them and was influenced by them, and he also responded positively to their desire to participate in a restorative process and helped it happen.

After the process Campbell said: “I think the ultimate decision on punishment should be made based on cool reflection of the facts and the evidence in the case” . . . “I don’t think those conferences are the best prism for that.” His statement reflects how lawyers and judges are trained to think that only the facts and law, and not feelings should guide sentencing decisions.

Our criminal justice system should follow this principle to ensure that our communities’ expectations for behavior are established in defining what a crime is and for making arrests and bringing charges for violations of law, but restorative justice in not about establishing expectations for public behavior, restorative justice is about individual healing, after a violation of society’s standards.

Allowing people, who want to share their stories and their pain, is respectful and empowering for them. It gives them the benefit of participation, which Christie says is usually “stolen” by legal professionals.

Hopefully, Campbell and more making criminal law policy decisions come to appreciate, as Sujatha has, that individuals harmed by crime, those who did the harming, and the wider community, should be given the opportunity for emotional expression, and hopefully for some healing in criminal cases.

The facts of a criminal case cannot be changed, but how individuals feel and think about them can change, and this is what can lead to healing. Restorative processes give individuals an opportunity to address what they need to heal.

Howard Zehr interviewed Sujatha to discuss the Florida case, which is available on line. The webair also includes video. Hearing and seeing Sujatha and Howard discuss the case is enlightening (if you try to access it outside the US and have any difficulties, please let me know so it might be fixed—please be careful to download the player to watch it as instructed).

Thank you to Paul Tullis for the article; Ted Wachtel for his thoughtful response; Sujatha for being a restorative lawyer and facilitator; Jack Campbell and Greg Cummings for their wise lawyering; Howard Zehr and all his contributions; Allison DeFoor for suggesting restorative justice to the Grosmaire family who lost their beloved daughter and faced a horror with courage giving others something to learn from; to the McBride family who had to face their son Connor’s horrible behavior, and who lost him too in many ways; thank you also to Connor for being accountable; and finally, thank you to lovely Ann Grosmaire whose short life projecting hope and love has been a source of inspiration to many.