March 2004 - #14. Restorative Justice in Vermont: Part Two.
Vermont Bar Journal
2004.
March 2004 - #14.
Restorative Justice in Vermont: Part Two
Vermont Bar Journal - March 2004
Restorative Justice in Vermont: Part Two
Jan Peter Dembinski, Esq.
The previous article on restorative justice, "Restorative Justice, Vermont State Policy," in the winter issue of the Vermont Bar Journal discussed the genesis of Vermont's restorative justice policy, as promulgated in 28 V.S.A. 2(a), and restorative justice philosophy in general. Two of the questions posed at the outset of the article were never addressed at large. How is restorative justice being done in Vermont? Can it, or should it, shape my practice? This article will attempt to address both questions, albeit the last only briefly. It will also give a short account of the legislative history of the policy and an overview of current restorative justice practices in Vermont. It will also take into account some of the current criticism of restorative justice practices among Vermont attorneys.1
Legislative History of the Restorative Justice Policy
While the Vermont Supreme Court may never have to address the question of the legislature's intent behind the restorative justice policy, Vermont attorneys might be interested in its legislative history. The push for the statutory policy came, unsurprisingly, from the Department of Corrections. According to John Gorczyk, previous to the passage of the policy in 1999, the department had been working on the policy "piece-meal over the course of many years."2 Gorczyk testified often before legislative committees, particularly judiciary committees, and laced his testimony with references to historic practices and the negative economics of "retributive justice," the justice rendered by the traditional, adversarial criminal justice system. Gorczyk testified
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that the retributive model "imposes a penalty that is supposed to inflict a level of loss or suffering on the offender commensurate with that of the victim and community," adding up to "negative numbers" for all concerned: the state, the offenders, and the victims.3 Gorczyk gave his presentation "over and over again" for new legislators coming into the Statehouse every two years. There was additional impetus in Corrections for a statutory policy in 1999 because the department had new rules for what it termed "offender re-entry and integration." According to Gorczyk, he pressed a member of the Rules Committee to incorporate "restorative language in statute" because "[Corrections] had been running a retributive program based on restorative principles for the last four or five years."4
According to Tom Little, then Chair of the House Judiciary Committee, the time was ripe for the restorative justice policy because of the adoption of the Victim's Bill of Rights.5 He also believes its passage was influenced by the Commission on the Future of Vermont's Justice System, convened by Chief Justice Amestoy, whose report issued in September of 1999.6 While there is no specific mention of "restorative justice" in the report's depiction of the future of Vermont's justice system, the report does envision the kind of broader and deeper community involvement in the justice system consonant with restorative justice processes via community justice centers:
Underpinning the formal court system will be a system of community-based
justice centers recognized and supported by the state and located in every town
and urban neighborhood. The centers will not be a formal part of the court system
but will work in close coordination and communication with it, with other
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community resources and social service providers, and with law enforcement officials.
The centers will assist individuals who bring in their problems with a
variety of alternatives - direct resolution through informal counseling or
mediation, referral to community or social service agencies for domestic or other
social problems, referral to local police or to other law enforcement agencies for
matters involving criminal behavior that cannot or should not be resolved
informally, and referral to the court system for problems of a civil, family, or pro-
bate nature that require more formal process.7
The Senate Institutions Committee, chaired by Senator Vincent Illuzzi, crafted the actual wording of the policy. According to Senator Illuzzi, legislators had expressed a growing concern that victims were not being represented very well in the criminal justice system. Enacting the restorative justice policy was one of the ways the legislature ensured that victims' needs were given the attention they deserved.8
But the policy as stated in 28 V.S.A. 2(a) goes far beyond focusing on victims' needs: "It is the policy of this state that principles of restorative justice be included in shaping how the criminal justice system responds to persons charged with or convicted of criminal offenses."9 The broad reach was presumably designed to address Corrections' concerns about having statutory policy supporting its re-entry and integration programs. As for the policy's language regarding persons charged with crimes, Senator Illuzzi says that it was designed to make sure the policy covered some of the pre-conviction diversion programs already in place around the state.10 These programs allow people cited with misdemeanors or low-level felonies to avoid being
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processed through court and having a criminal record. In Senator Illuzzi's opinion, the policy does not set out "marching orders," so to speak, for prosecutors and defense attorneys in the criminal justice system, but provides a viable alternative for certain cases: Participation in a restorative justice process is not something a court can force a person to do - so it is only appropriate when the court and the district attorney have determined an offender is willing to participate voluntarily in a restorative justice process and complete any agreement that comes out of that process, which could include a punitive aspect, such as jail time, as well as restitution to a victim
and community service.11
As far as Senator Illuzzi is concerned, the policy focuses on minor level offenders, but he acknowledges that the policy allows the criminal justice system to use restorative practices for any criminal offense and for sentencing purposes.12
Community Justice Centers
For the most part, restorative justice practices in Vermont are shaping up according to the vision of the legislators and the Amestoy Commission. Currently, Burlington, Winooski, St. Johnsbury, Newport, Rutland, Barre, Montpelier, and Brattleboro have community justice centers. These centers are funded mainly by the Department of Corrections and offer a variety of restorative justice services, including conferencing, reparative panels, and pre-charge programs. Some of the centers are in the formation stage. Other restorative justice programs around the state include: pre-charge programs in Hartford and Essex; the Hinesburg Community Partners Program (offering mediation and conferencing programs); the Lamoille County Pre-Charge Intervention
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Program (serving youths age sixteen and younger with conferencing and mediation); the "Just Youth" Project of Chittenden County; and the Shelburne Restorative Justice Program (including conferencing, panels, and mediation).13
These centers...
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