Restorative Justice and Reparations: Repairing Harm and Rebuilding Communities

1. Chapter 10 Economic & Restorative Justice Reparations

2. Introduction • Community justice: a philosophy that uses community stakeholders to control & reduce crime & rebuild community relationships through community policing, community courts & restorative justice • Restorative justice: a sentencing philosophy that emphasizes the offender taking responsibility to repair the harm done to the victim & the surrounding community

3. Restorative Justice Principles • RJ is community-based & combines mainstream American criminal justice with indigenous justice practiced by Native Americans • RJ focuses on the victim, the offender, & the community, rather than just punishing the offender • RJ uses reintegrative shaming rather than stigmatization • Reintegrative shaming allows the victim & community to disapprove of the criminal behavior but seeks to repair the weakened social bonds caused by the crime

4. Restorative Justice Principles • All forms of RJ share 6 commonalities: • At least 1 session is held in the community, with the goal of allowing victims to communicate how the crime affected them • A reparative plan is developed & accepted by the victim & the offender • Victim & offenders volunteer to participate • Parties rely on community partners & volunteers for help • Offenders accept responsibility for their crime, admit guilt, & agree to comply with the reparation plan • While RJ can take place in jails & prisons, most forms are community-based & are an alternative to traditional court processing or as part of diversion

5. Victim & Offender Mediation (VOM) • VOM has existed in U.S. since early 1980s; there are thousands of programs worldwide • Victims agree to participate in order to seek restitution, oversee punishment, & share their grief with the offender • Many victims report satisfaction with case outcomes, are more likely to get restitution, & are less fearful of being revictimized • There are concerns VOM gives victims’ perspective more free reign & offenders’ perspective is not addressed enough • No strong evidence that VOM reduces recidivism • Between 40 to 60% of victims refuse to participate in VOM

6. Reparation Boards • Reparation boards have existed in the juvenile justice system since 1920s • Boards mediate between the court & the offender and may or may not involve the victim • They meet after the offender is convicted to decide how offender will repair harm & reform their conduct • Volunteers agree to mentor & supervise the offender • Board reports to the court on offender’s compliance & recommend sanctions if the offender violates reparation plan

7. Family Group Conferencing • Used primarily when the victim & offender come from the same family or close-knit group, the goal is to strengthen families • Conference includes not only the victim & offender, but also family members • Typically used in juvenile cases • Requires offender to take responsibility • Participation is voluntary for all involved

8. Sentencing Circles • Circles are based on tribal justice & rely on reintegrative shaming • Circles consist of offender, victim, family, friends, coworkers, social service personnel, & interested community members • Purpose is to arrive at consensus of how justice can be achieved • Of all RJ programs, circles involve largest number of participants & are most organized • Most effective in smaller communities

9. Effectiveness of Restorative Justice Methods • Measures of RJ include: • Satisfaction with the outcome/process • Payment of restitution • Cost savings • Studies show restitution more likely to actually happen as part of an RJ program than tradition court processing • RJ is less likely to be accepted by victims of violent crimes than victims of property crimes

10. Effectiveness of Restorative Justice Methods, Cont’d. • Victims’ concerns about RJ are: • Some victim’s groups find RJ focused on offenders • Some criticize RJ for its emphasis on reintegrative shaming, rather than retribution & stigmatization • Many victims find it difficult to advocate on their own and RJ is additional pressure • Evaluations of RJ: • Positive impact on recidivism of juvenile offenders • Less successful in reducing recidivism of adult offenders

11. Restitution • Restitution: court-ordered payment by the offender to the victim (or the victim’s family) to cover the tangible losses that occurred during or following the crime • Restitution has a long history around the world • The victim rights movement in the 1960s put the spotlight on the need for judges to order restitution

12. Restitution, Cont’d. • Congress passed 3 statutes in the 1990s to increase the collection of restitution • Losses by victims available for compensation include: • Lost income, medical expenses, transportation to court, child care, counseling sessions, sexual assault exams, HIV testing, moving expenses, travel & meal expenses, & burial expenses • Eligible parties include: victims, the victim’s family, & organizations that provide care, shelter, or counseling • Victims typically apply for restitution through prosecutor’s office, press charges, & agree to testify

13. Restitution Problems • Problems associated with restitution are: • Underutilization • restitution is ordered in only 10% of felony convictions & 22% of misdemeanors • The lack of victim participation in the system & general lack of knowledge about restitution • Defendant’s indigence • Determining the proper amount • Collecting restitution

14. Indigent Offenders • An indigent defendant who cannot pay restitution cannot be cited for contempt or sent to prison • If a defendant can afford but refuses to pay restitution, he or she may be incarcerated depending on the jurisdiction’s laws • Declaring bankruptcy does not excuse offenders from paying restitution

15. Determining the Restitution Amount • In RJ cases, it is determined at the mediation session • In traditional court cases, the judge sets the amount • Officers can suggest an amount in a PSI report • Amount based on: • offender’s financial obligations & ability to pay • whether the victim was insured or was partially at fault • expenses the victim incurred because of the crime (prosecutor must establish the amount of harm beyond a preponderance of the evidence) • the harms & costs that qualify for restitution • the effect of a plea agreement

16. Collecting Restitution • Probation offices, day reporting centers, & restitution centers collect restitution, determine the installment payment schedule & get the funds to the victim • Only about a third to half of felony offenders pay full restitution before end of their sentence • Some systems will not an incarcerated offender if restitution is not paid

17. Community Service • Community Service: unpaid service to the public to compensate for harm done by the offender • Typically ordered by judge as part of probation • Most frequent types of community service: picking up roadside litter, doing landscape maintenance, removing litter or graffiti, painting buildings • Community service began in the U.S. in 1966 in Alameda County, California • In the U.S., it has developed as an alternative to fines or a condition of probation

18. Probationers who were ordered to community service, restitution, and treatment

19. Community Service, Cont’d. • The U.S. does not follow the English model of allowing community service to serve as an acceptable alternative to imprisonment • Community service is both punitive and rehabilitative • Good alternative for indigent offenders who cannot afford monetary sanctions & wealthy offenders where such sanctions are not meaningful • States differ in how often community service is mandated, & is seldom used as a sole sanction • The offender’s employment status must be considered in determining their schedule

20. Effectiveness of Community Service • Many nonprofit organizations benefit from the labor provided by offenders • Completion rates vary, in part depending on strength of enforcement • While little research has been done regarding effectiveness, community service has wide public support • Important questions about community service: • What is its purpose: diversion, reduce recidivism, both? • Should it be used instead of or with other sanctions? • Should it be expanded for prison-bound offenders? • How is its value calculated compared to days in jail or fines?

21. Fines • Fine: a monetary sanction imposed by the judge, the amount depending on the severity of the offense • Two types of fines: fixed fines & day fines • 90% of fines go to victim/witness assistance programs or victim compensation funds. • A fine is viewed as a punishment & can be imposed as sole penalty or one of other penalties • Fines in U.S. are underused & their collection is not well enforced

22. Fines, Cont’d. • Fines are ordered in 25% of state felony cases & 13% of federal cases • Seldom used in the U.S. as the sole penalty, but are used as primary penalty for organizational or corporate defendants • In Bearden v. Georgia (1983), the Supreme Court held that probation cannot be revoked solely due to an offender’s inability to pay a fine or restitution • Unwillingness to pay may result in revocation

23. Day Fines • Day fines, or structured fines: court fines figured as multiples of the offender’s daily income & provide the same percentage of financial hardship to each offender • A low income offender & a wealthy offender convicted of the same offense, with the same criminal history & risk factors, would pay different amounts because their earning are different • Day fines impose the same degree of financial hardship on each offender

24. Fees • Fee: a court-imposed reimbursement that the offender pays for the administration of the criminal justice system • Acquitted defendants do not pay fees • Fees are not considered punitive & indigent defendants cannot be required to pay them • Typical fees or “costs” are assessed for: • DNA, drug, & alcohol testing • Diagnostic testing • Inpatient & outpatient treatment • Prosecution/court costs • Repayment of fees for appointed counsel • Community supervision fees • EM/GPS

25. Forfeitures • Forfeiture: a government seizure of illegally obtained property or used in connection with illegal activity, & can be either criminal or civil • In criminal cases, it occurs after conviction • In civil cases, the burden of proof is by preponderance of evidence • Purpose is to make sure offenders cannot keep illegal property & discourage the use of homes & businesses to conduct crimes • Not considered punishment, but (per 8th Amendment’s ban on excessive fines) cannot be grossly disproportionate to the seriousness of the offense

26. Residential Community Facility • An AWOL soldier, Derik Hembree, pled guilty in 2011 to violating a custody order after absconding with his 1 month old baby. He left the baby unharmed at an Oklahoma fire station. Hembree is a combat veteran, and, according to his attorney, may have been suffering from PTSD at the time of his offense. Hembree was sentenced to 2 years in a community corrections facility. • http://www.gazette.com/common/printer/view.php?db=colgazette&id=130559

27. Celebrity Doing Community Service • Rap artist Snoop Dog was sentenced to 800 hours of community service & 5 years probation in 2007 for felony gun possession & marijuana charges. Later that year he was sentenced to another 160 hours of community service & a $10,000 donation to charity for felony possession of a dangerous weapon.