RESTORATIVE FEDERAL CRIMINAL PROCEDURE.

• Author: Sorokin, Leo T.
• Position: Annual Michigan Law Review Book Review Edition

UNTIL WE RECKON: VIOLENCE, MASS INCARCERATION, AND A ROAD TO REPAIR. By Danielle Sered. New York: The New Press. 2019. Pp. 305. Cloth, $24.49; paper, $18.99.

INTRODUCTION

"We can make America what America must become" (p. vi). So begins Danielle Sered's (1) essential new text, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair: with an urgent call to action. This admonition, issued almost sixty years ago by James Baldwin, challenges the reader to engage in the quintessentially American project of "form[ing] a more perfect Union" (2)--that is, participating in the ongoing, collective project of crafting a more egalitarian society that promotes human flourishing. (3) In this moment, when violence pervades American society even as America "incarcerates a larger proportion of its people than any other country," (4) Sered repurposes Baldwin's enduring exhortation to focus the American project on one critical task: a wholesale reappraisal of our criminal justice system.

While Sered's book is replete with empirical data and research-based arguments, two statistics she cites suffice, at the outset, to demonstrate the urgency of reform: (1) in recent years, "a full 56 percent of cases in which victims were injured went unreported" to the police (p. 34), and (2) fewer than half of reported violent crimes were solved by the police. (5) This Review adopts Sered's view that these troubling and uncomfortable facts demand a clear-eyed honesty, a willingness to question familiar methods (and, if necessary, discard them), and a hunger for repairing interpersonal and systemic harm.

Baldwin's words echo throughout Sered's book, serving as a motif that orients her inquiry. (6) Following Baldwin's approach, as well as his axiom that Americans must understand our history if we are to be "released from it," (7) a central aspect of Sered's project is to challenge narratives that have long dominated our socio-legal structures. Indeed, Sered acknowledges that the narratives she seeks to challenge are as familiar to American readers as "baseball and apple pie" (p. 1). The standard narrative runs as follows: Incarceration--especially for long periods of time--is "the single blunt instrument" that effectively deters crime and keeps us safe (p. 12). Victims of crime either fixate on revenge or display uncommon, almost saintly grace (and nothing in between) (pp. 20-21). Violence is committed by "bad" individuals who can be understood (and punished) without reference to their social context (p. 83). Responsible parties (Sered's term for perpetrators of violence or criminal defendants found guilty of such actions) and survivors (Sered's term for victims of violence) have diametrically opposed interests and occupy cleanly divisible roles in the processes that respond to harm (p. 142). Prison holds offenders accountable for their actions (p. 91); alternatives to incarceration crafted with the participation of survivors and community members let responsible parties off the hook (p. 161).

According to Sered, "[o]ur society's continual retelling of [these] stor[ies] is, quite simply, unethical" (p. 42). Most importantly she says, these stories have justified a system that leaves survivors without a voice and makes all of us--especially people of color--less safe. In fact, "prison does not merely fail to rehabilitate the people it confines," Sered explains, "it contributes to the likelihood that they will commit greater harm in the future" (p. 66). Our tendency to "pathologize the angriest victims," as well as "the forgiving ones," elides the vast majority of survivor experiences, which occupy a "messy middle" filled with emotions like "compassion, grief, loss, fury, ... confusion ... love, despair, resentment, terror, and hope" (pp. 21-22). Perpetrators of harm cannot be understood without reference to the "larger ecosystem that made the harm likely in the first place" (p. 83). Responsible parties and victims often have "multiple roles as at once harmed and responsible, at once owed and in debt" (p. 142). And prison, rather than teaching offenders their lesson, does not require anyone to "face the human impacts of what they have done," take responsibility for their "decisions and the pain they have caused," or "do the extraordinarily hard work of answering for that pain and becoming someone who will not commit that harm again." (8) Thus, Sered powerfully argues, the narratives we continue to tell and believe must be rejected or revised.

But Sered's book has ambitions far beyond critiquing narratives. This may be so for several reasons. First, Sered intervenes in the debate over criminal justice reform at a moment when scholars and policymakers of all political stripes recognize certain shared premises. (9) Second, while Sered has undoubtedly produced a powerful and skilled scholarly work, she is not, primarily at least, a scholar. Rather, Sered is the director of Common Justice, a New York City-based nonprofit that "operate[s] an alternative to incarceration and victim services program for serious and violent felonies" (p. 133). Her book, then, is not merely a critique; instead, Sered uses Common Justice to provide a positive vision for reform. Third, Common Justice does not stand as a singular vision. Sered's book arrives in the midst of numerous initiatives across the country seeking to infuse restorative justice practices into the criminal justice system. (10)

Inspired by a commitment to restorative justice principles,11 Common Justice "offer[s] a survivor-centered ... process that gives those directly impacted by acts of violence the opportunity to shape what repair will look like, and, in the case of the responsible party, to carry out that repair instead of going to prison" (p. 133). Operated as a partnership with the Kings County and Bronx District Attorneys' Offices in New York City, Common Justice only accepts a case when the survivor, the prosecutor, and the responsible party all consent. (12) The reparation agreements that result from Common Justice's program are long-lasting, with services rendered to both survivors of harm and responsible parties. (13)

Central to Common Justice's work "is a dialogue process, often called a circle, that includes the responsible party, the harmed party, and support people" (p. 135). Participants work collectively to "identify the harm that was done and begin to define a pathway to repair" (p. 135). Ultimately, with the help of trained facilitators, "all parties decide on agreements other than incarceration to hold the responsible party accountable in ways meaningful to the person harmed" (pp. 136-37). This often includes commitments to (formal and informal) education, tailored and sincere apologies, addressing harmful reliance on drugs or alcohol, and paying restitution, among other "creative commitments particular to each case" (p. 137).

Sered explains that Common Justice's work is guided by "four core principles": interventions must be "survivor-centered, accountability-based, safety-driven, and racially equitable" (p. 14). For the past decade, the organization has worked with hundreds of survivors and perpetrators of violence and has achieved truly staggering success: "[F]ewer than 6 percent of Common Justice participants ha[ve] been terminated from the program for being convicted of a new crime" (p. 134), "[m]ore than 85 percent of Common Justice graduates go on to lead law-abiding lives," (14) and "survivors report 80 to 90 percent rates of satisfaction with restorative processes, as com-compared to 30 percent for traditional court systems." (15) While Sered is the first to admit that "[r]estorative justice will not fully replace incarceration," and notes that "it is not a panacea," she persuasively presents restorative justice practices and principles as viable improvements to traditional criminal justice theory and law (p. 133).

This Review complements Sered's work, aiming to situate restorative justice interventions in a legal institution that, as a matter of course, confronts harms that emanate from both violent and nonviolent offenses: the federal courts. In doing so, this Review explores questions that necessarily follow from any attempt to integrate restorative justice principles into the federal criminal system: How might federal criminal procedure more effectively center the needs of survivors, defendants, family members, and other nonparties? How can the various actors within the court system facilitate processes that repair harm? In an era of few jury trials, (16) how can the courts involve community members when they engage in restorative processes? (17)

These questions inform how we might integrate restorative justice practices into the work of the federal courts. But they do not, at least overtly, confront a series of undeniable and significant tensions at work in such an effort: Will any coercive, court-driven process result in truly restorative justice? (18) Are the criminal justice system's barriers to unbridled truth telling incompatible with a restorative justice framework that assumes an offender's guilt? (19) For that matter, are the federal courts an appropriate site for restorative justice interventions? (20)

Before this Review confronts--albeit in attenuated form--these challenges, it first recounts Sered's arguments. Part I summarizes Sered's claims, including her deconstruction of the roots of violence, her characterization of survivors' oft-ignored needs, her prescription for centering accountability in our response to harm, and her description of restorative justice practices that Common Justice utilizes. Then, Part II situates Sered's project within the larger ecosystem of restorative justice interventions. Next, Part III describes restorative justice interventions that are being implemented in the United States District Court for the District of Massachusetts. Finally, Part IV explores challenges and critiques that complicate efforts...