Regulating Restorative Justice: What Arbitration Teaches Us About Regulating the Restorative Process in Criminal Courts

• Author: K. Hope Harriman
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A. with Honors, University of Chicago (2014)
• Pages: 1005-1023

Regulating Restorative Justice: What Arbitration

Teaches Us About Regulating the Restorative

Process in Criminal Courts

K. HOPE HARRIMAN*

INTRODUCTION

My first encounter with restorative justice occurred in 2016, when I was work-

ing as a student researcher in Kigali, Rwanda. I had been employed by a local

non-profit whose mission was to foster peace and reconciliation after the

Rwandan genocide of 1994. My task was to interview survivors and perpetrators

of the Rwandan genocide about their experience of post-conflict reconciliation.

With the help of a translator, I talked to survivors and perpetrators in pairs. In the

morning, I would hear the survivor’s account of how the perpetrator had killed

their family members, and why they nonetheless offered that person forgiveness.

In the afternoon, I would hear the perpetrator’s account of murder and remorse.

The day concluded with a meal, shared by all parties.

Growing up in a retributive justice system in the United States, I had no frame

of reference for what I was seeing. According to my sense of justice at the time, a

murderer was to be tried by a judge, sentenced according to the law, and impris-

oned for the requisite statutory period. However, such a scheme was not possible

after the Rwandan genocide, since there were more killers than the traditional

legal system could possibly process.

1

In lieu of a traditional court of law, the

Rwandan people opted for a community-based court called “gacaca” to bring jus-

tice to the genocidaires.

2

In these gacaca courts, the genocidaires were sentenced

by fellow community members, many of whom had no formal legal training.

3

Punishments typically consisted of prison time, and/or activities designed to rein-

tegrate the perpetrators into the community, such as repairing roads and public

buildings and constructing new homes for the survivors.

4

This process, wherein perpetrators and victims participate in community-based

reconciliation, strongly resembles restorative justice. At its core, restorative jus-

tice is a community-centered approach to resolving crime and conflict that

* J.D., Georgetown University Law Center (expected May 2022); B.A. with Honors, University of Chicago

(2014). © 2021, K. Hope Harriman.

1. See Justice Compromised, HUMAN RIGHTS WATCH 13 (May 31, 2011), https://www.hrw.org/report/2011/

05/31/justice-compromised/legacy-rwandas-community-based-gacaca-courts [https://perma.cc/QM65-RTG3].

2. See id. at 14-15.

3. See id. at 15, 17-18.

4. See id. at 73-74, 77-78.

1005

rehabilitates the offender while reconciling them to their victims and the commu-

nity.

5

This approach is markedly different than the criminal justice system in the

United States, which isolates perpetrators as a form of punishment. Under a re-

storative justice approach, the offender, the victim, and all affected community

members generate their own agreement about how to fix the problem that brought

the offender to court in the first place.

A. THE RESTORATIVE JUSTICE COMMUNITY COURT

After leaving Rwanda and returning to the United States, I dedicated myself to

seeking out similarly restorative models for crime and punishment within the

American legal system. In 2017, I started my two-year tenure as the intern for the

presiding judge of the “Restorative Justice Community Court,” or “RJCC” in

Chicago, Illinois. The RJCC is built on the same philosophy of restorative justice

as the gacaca courts. Instead of simply giving prison time to those who break the

law, the RJCC uses restorative justice to repair the harm and prevent it from reoc-

curring.

6

The RJCC’s process is somewhat akin to victim-offender mediation,

wherein the perpetrator and victim find a mutually satisfying way to repair the

harm that was caused through the help of a skilled facilitator called a “circle

keeper.”

7

However, a restorative justice court process is different than mediation

because it is more community focused.

8

At the RJCC and other restorative justice

courts, the defendant and victim are not the only ones in the room. Any commu-

nity member who was affected by the crime is encouraged to participate in the

conflict-resolution process and keep the offender accountable for repairing the

harm that they caused.

9

Unlike the gacaca courts, the RJCC contains more trappings of a traditional

courtroom. The RJCC is an official court of record in the Circuit Court of Cook

County. This means that (1) the RJCC is part of the official network of taxpayer-

funded courtrooms in Cook County, (2) its proceedings are recorded by a court

reporter and available for public review, and (3) the court is led by a full-time

county judge who is appointed by Cook County Chief Judge Timothy Evans. The

RJCC is in session once per week, and it meets in its own building located in the

5. See Howard Zehr, LITTLE BOOK OF RESTORATIVE JUSTICE 2-3 (2014).

6. See Press Release, State of Illinois Circuit Court of Cook County, Restorative Justice Community Court

launched in Avondale – the first on the Northwest Side, (Aug. 5, 2020), http://www.cookcountycourt.org/

MEDIA/View-Press-Release/ArticleId/2781/Restorative-Justice-Community-Court-launched-in-Avondale-

the-first-on-the-Northwest-Side [https://perma.cc/5DJW-DWE7].

7. “Circle keeper,” “restorative justice facilitator,” and “facilitator” will be used interchangeably.

8. According to the American Bar Association, mediation is “a private process where a neutral third person

called a mediator helps the parties discuss and try to resolve the dispute.” Mediation, American Bar

Association, https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/

mediation/ [https://perma.cc/A6TK-4FN5] (lasted visited Feb. 15, 2021).

9. See K. Hope Harriman, Restoring Justice: An Analysis of the North Lawndale Restorative Justice

Community Court, THE UNIVERSITY OF CHICAGO 51 (Apr. 17, 2018), https://knowledge.uchicago.edu/record/

2525?ln=en [https://perma.cc/W8E5-5L57].

1006 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1005