Restorative Justice: Vermont State Policy
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2003 No. 12 |
| Publication year | 2003 |
December 2003 - #13. Restorative Justice: Vermont State Policy
Restorative justice became the law and official policy of the State of Vermont on May 24, 2000, under Title 28 VSA 2a. The policy is broad and dynamic, mandating that "principles of restorative justice be included in shaping how the criminal justice system responds to persons charged with or convicted of criminal offenses."1 Being the state policy, one would think that restorative justice might permeate Title 13 of the Vermont Statutes Annotated, "Crimes and Criminal Procedure." However, the only mention of "restorative justice" in Title 13 is a tepid peep in 7030, "Sentencing Alternatives," subsection (b): "When ordering a sentence of probation, the court may require participation in the restorative justice program established by chapter 12 of Title 28 as a condition of the sentence."2 Why is this so? What is restorative justice, anyway? How is it being done in Vermont? Can it or should it shape my practice? This article will introduce the reader to restorative justice, a growing state, national, and international movement that is reshaping criminal justice systems at fundamental levels - including our own. A future article will explore in greater depth the present state of restorative justice practices in Vermont.
Restorative justice has been described as "a philosophy, a set of values, and a process."3 A much quoted definition of restorative justice by a British commentator holds that "Restorative Justice is a process whereby all parties with a stake in a specific offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future."4 Organizations and promoters of restorative justice have usually revised that definition to emphasize the flexible nature of restorative justice techniques. They usually introduce restorative justice by discussing its "principles" and goals.5 According to Howard Zehr, who has been called the "grandfather of restorative justice" and whose book Changing Lenses: A New Focus for Crime and Justice is a seminal work in the field, there are five key principles or actions to the restorative justice "lens":
(1) Focus on the harms and consequent needs of the victims, as well as the communities' and the offenders'; (2) Address the obligations that result from those harms (the obligations of the offenders, as well as the communities' and society's); (3) Use inclusive, collaborative processes; (4) Involve those with a legitimate stake in the situations, including victims, offenders, community members, and society; (5) Seek to put right the wrongs.6 But restorative justice "principles" have hardly been set in stone. New Zealand re-engineered its entire youth justice system in 1989 adopting explicitly a restorative justice technique called "Family Group Conferences," patterned directly on the traditional justice practices of New Zealand's indigenous Maori tribe. According to the New Zealand Restorative Justice Practice Manual, the "principles" of restorative justice are: "(1) Making room for the personal involvement of those mainly concerned (particularly the offender and the victim, but also their families and communities);
(2) Seeing crime problems in their social context; (3) A forward looking (or preventative) problemsolving orientation; (4) Flexibility of practice (creativity)."7 According to the Department of Corrections here in Vermont, the "guiding principles" of its Reparative Probation are as follows:
(1) Crime is an offense against human relationships; (2)Victims and the community are central to justice processes; (3) The first priority of justice processes is to assist victims; (4) The second priority is to restore the community, to the degree possible; (5) The offender has personal responsibility to victims and to the community for crimes committed; (6) Stakeholders share responsibilities for restorative justice through partnerships for action; (7) The offender will develop improved competency and understanding as a result of the restorative justice experience.8 The wide variety of "principles" seen among restorative justice practitioners indicate that whatever restorative justice is, it is still emerging in concept and practice - even if it is our state policy in Vermont.
What is clear, however, is that in the restorative justice "philosophy," crime is seen as, fundamentally, harm to people and the interpersonal relationships that, en masse, constitute community. Justice, therefore, is conceived of as that which identifies "obligations created from the offense to meet the needs and interests of individuals and communities."9 Justice focuses on what is needed for the healing of individuals and communities hurt by crime.
Advocates of restorative justice always compare it to the traditional model of justice in order to highlight the differences. Howard Zehr in Changing Lenses pointed out that the legal system currently looks at justice through a "retributive" lens and views crime as an offense against the state. He suggested we start looking through a "restorative" lens and realize that crime is actually committed against people, and that the focus should be on restoring victims.10 Thus, in the language of the movement, "retributive" is the term used to describe the traditional criminal justice process, and "restorative" is used to describe the new processes being advocated.
The differences are profound. The focus of the retributive model is on establishing guilt; whereas the restorative model's focus is on repairing the harm and solving problems. In the retributive model, the victim is largely ignored; in the restorative model, the victim is a key participant. In the retributive model, the offender is passive; in the restorative, the offender is encouraged to take responsibility. Accountability in the retributive model is considered accepting one's punishment; in the restorative model, it is demonstrating empathy with the victim and helping to repair the harm. The retributive model focuses almost exclusively on the offender's past behavior; the restorative more on the harmful present consequences of the offender's behavior and the future behavior that can restore and repair relationships. The retributive model stigmatizes the offender, often for life; the restorative model offers a chance to remove the stigma of crime through appropriate actions. The retributive model depends on highly trained professionals who can pursue legal strategies with little if any input from their clients; the restorative model depends on the direct involvement of those who have been affected. The retributive model is strictly rational; the restorative model encourages expressions of emotion.11
In Vermont, a restorative justice "philosophy" and practice emerged in a distinct manner with little influence, if any, from the "change of lenses" Zehr was propounding. It emerged from a thorough re-thinking of the Department of Corrections that began in the 1980s.12 Toward the end of the decade, Corrections had come under criticism for releasing inmates into local communities. As a response, Governor Madeleine Kunin commissioned a committee to explore how to bring Corrections' policies into harmony with the State's and communities' interests and how to increase the capacity of communities to deal satisfactorily with newly released inmates. Bill Page, the director of strategic planning for Polaroid for more than thirty years and a founding member of the Human Behavior and Evolution Society, was a member of the committee. He was joined by such notable figures as Jack Coleman, a retired president of Haverford College (who had taken sabbaticals during his tenure, once to live for a year as a hobo and once for a year as an inmate), and John Downs of Downs Rachlin & Martin. As part of his work for the committee, Page sponsored a group of senior ranking Corrections officials to partake in a three day seminar which would acquaint them with the research work being done by Polaroid (for marketing purposes) on epigenetics - the science concerned with development.13 Epigenetic rules have been defined as "any regularity during epigenesis that channels the development of an anatomical, physiological, cognitive, or behavioral trait in a particular direction."14 At about this same time, John Perry, the Director of Planning for the Department, had become quite interested in game theory15 (what...
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