Restorative justice is an approach to address conflict and misconduct that focuses on healing rather than punishment and values accountability over exclusion.
HISTORY OF RESTORATIVE JUSTICE
Although restorative justice has recently gained recognition and support in the United States, restorative justice practices date back centuries to indigenous peoples of Canada and the U.S. One indigenous philosophy views wrongdoing in a profoundly communal, rather than legal, manner; there is a collective responsibility to respond to the harm caused by the wrongdoer.1 Restorative tribal court systems often employ a team of individuals to address the harm with the ultimate goal of healing the underlying causes of troublesome behavior so the person who caused harm can eventually be reintroduced into the community.2 In this way, tribal restorative practice helps to restore balance and harmony both to the parties involved and to the community at large.3
Many other countries use restorative practices as the dominant model of their criminal justice systems. In New Zealand, the criminal justice system uses family group conferencing — largely based on the traditional practices of the Maori natives. This process is reflective of traditional tribal practices and often brings together the victim, the offender, family, friends, coworkers, teachers, spiritual leaders, and others to facilitate collective responsibility and healing for the victim and offender. This restorative practice views doing harm as a symptom of a larger problem and allows parties to find lasting resolution.4 Since the 1990s, the family group conference model has spread to many other countries including Australia, Canada, Jamaica, Ireland, Singapore, South Africa, the United Kingdom, and the U.S.
Howard Zehr founded the Elkhart County (Indiana) Prisoners and Community Together program, the first victim-offender reconciliation program in the United States. Zehr cited three reasons for the necessity of restorative justice work:5
- Victims were not only being left out of the justice process, but were often re-traumatized by it; there needed to be a better experience and more options for victims,
- The justice system was ineffectively using punishment under the guise of accountability, and
- The exclusion of the community in justice system decisions was a disempowering oversight.6
As a result of Zehr’s work, restorative justice has become a popularized term that has sparked interest across the nation and worldwide.7
Currently, there are dozens of diversion and deflection programs across the country engaging in restorative justice practices.8 Many states have formally adopted legislation incorporating restorative justice practices9 and some states, such as Minnesota this past May,10 have formally funded restorative justice programs.
EXPANDING RESTORATIVE JUSTICE IN MICHIGAN
A variety of Michiganders are interested in expanding restorative justice programs across the state. Restorative justice practices have been used in workplaces and schools, and religious, state, and nonprofit organizations have all been proponents.
School districts and educators across the state have traditionally relied on zero-tolerance exclusionary discipline policies for years. Too often, these policies remove an excessive number of students from the classroom by suspension or expulsion, create racial disparity gaps, and distract from the educational mission.11 However, many school districts have moved towards alternative systems that focus more on social-emotional learning, healing practices, and positive behavioral interventions. The State of Michigan has officially listed restorative justice as an alternative to suspensions and expulsions.12 With restorative justice, the role of discipline is not to be punitive, but to help children become responsible and informed adults through teaching and guidance. Common restorative methods — such as conferences, mediation, and community circles — are easily adoptable to the school setting. There are also 16 community dispute resolution centers spread out across Michigan and several have robust school-based restorative justice services, helping schools expand restorative justice practices and teach children how to resolve conflict.
In recent years, the restorative justice movement has also gained traction in the criminal justice space. As restorative justice has grown in popularity and recognition, some state legislators — and state legislatures across the country — have worked to codify restorative practices.13 Since November 2020, the Michigan Restorative Justice Council (MRJC) has worked to develop victim-offender mediation strategies for policymakers to use in support of statutory authority.14 In March 2022, former Rep. David LaGrand introduced House Bill 5987, the Restorative Justice Enabling Act.15 The final bill provided structure and definitions for use of restorative justice practices in Michigan’s criminal justice system; however, Rep. LaGrand’s departure from the House of Representatives has left restorative justice in need of a new champion in the legislature. Organizations such as the MRJC and the Metro Detroit Restorative Justice Network continue to push for legislation which would involve both victims and offenders and provide effective ways to communicate, recognize responsibility and healing, and create repair plans.16
RESTORATIVE JUSTICE IN WASHTENAW COUNTY
In Washtenaw County, champions of restorative practices have been working for decades to make peacemaking and restorative justice a part of our criminal justice system. While several people deserve to be recognized, two of the giants in Washtenaw County are Circuit Court Judge Hon. Timothy Connors and Belinda Dulin, director of the Dispute Resolution Center of Washtenaw County. In 2013, with funding from the Michigan Supreme Court Connors and Dulin established the Peacemaking Court with the goal of “[creating] a resiliency based court model for future application to conflict resolution ... [and] striv[ing] to better serve our youth, our families and our community through healing rather than harming ongoing relationships.”17 The Peacemaking Court has been available to participants in family, probate, civil, juvenile, abuse and neglect, and district court cases. Groups such as the Friends of Restorative Justice and other community members have pushed for restorative justice practices to be expanded into the criminal justice space for years.
In 2020, Eli Savit ran for county prosecutor on a platform that included expanding options for crime survivors. Even before he was in office, he assembled a workgroup of community members and stakeholders to discuss a restorative justice program for adults and juveniles charged with crimes. The group included representatives from different faith communities, attorneys, social workers, law enforcement officers, nonprofit workers, educators, and students. After Savit was elected, he pulled together a team of volunteers from the prosecutor’s office to design a program alongside the Dispute Resolution Center of Washtenaw County.
For most of 2021, the team listened in on the countywide workgroup, had weekly meetings with the Dispute Resolution Center, and met with creators of restorative justice programs from across the country. Over several months, the team crafted documents to help roll out the program including a written policy, a referral process, referral forms, a frequently-asked-questions packet, a brochure, and a flowchart.18 Internal changes were made to the case management system and staff were trained on the new policy and process.
The Washtenaw County Restorative Justice Program was officially rolled out in September 2021 as a deflection program — cases would be referred to the program and sent to the Dispute Resolution Center before charges were authorized. Critically, only cases where the crime survivor and the person who caused harm (the would-be defendant) wanted to go through the program would be admitted. If either the crime survivor or the person who caused harm did not want to go through the program, the defendant would be charged and the case would move through the traditional criminal court system.
Many crime survivors needed time to heal before they were ready to participate in restorative justice. It became clear that the program needed to be expanded to include cases in the traditional court system in which a defendant had already been charged. As a result, after meeting with judges and attorneys, Washtenaw County Circuit Court Chief Judge Hon. Carol Kuhnke in October 2022 signed a local administrative order allowing certain criminal cases to be diverted into the restorative justice program.
Washtenaw County’s Restorative Justice Program is the first of its kind in the state. Many adult criminal cases are referrable, with exceptions for sexual assault, victimization of children, intimate partner violence, and other cases where the prosecutor determines the defendant poses a public safety risk such as homicides or cases involving gun violence. Thus far, the overwhelming majority of cases that have been officially referred into the program have been successful — meaning the crime survivor and person who caused harm were able to reach an agreement, complete the program, and make amends. The program also requires that the person who caused harm does not commit any new criminal activity for 18 months after admission into the program; thus far, none of the participants who have completed the program have engaged in new criminal activity.
While the program has been successful thus far, it did not come without mistakes or errors. The creation process could have been more intentionally inclusive. Although the workgroup was open to everyone, there were important stakeholders missing from the table at the outset of the process. Further, certain stakeholders were not on board with the program and more attempts could have been made to bring them to the table to discuss their concerns. Finally, the program was created and implemented by staff members with a passion for restorative justice who wanted a new opportunity for crime survivors, but those staff members had other roles in the office, making it a challenge for them to focus exclusively on the program.
The Washtenaw County Restorative Justice Program, and restorative justice in general, is certainly a step in the right direction for the criminal legal system. Our traditional system is one where crime survivors frequently do not walk away feeling that justice was granted — often, crime survivors feel left out, may be retraumatized by their participation in the court system, and rarely get the resolution and closure that they desire. Furthermore, offenders are often harmed by the traditional system rather than rehabilitated or reformed, saddled with convictions that destabilize their lives and the lives of family members by making it more difficult to secure housing and good jobs. Taken together, our traditional legal system often fails to make us safer or heal our communities.
Restorative justice is an opportunity for prosecutors to provide accountability and healing, and an opportunity for crime victims to get the answers they desperately want in the fashion they choose. Rather than letting trauma fester in the shadows, it brings it into the open. Data shows that crime survivors feel the restorative justice process is more fair than the traditional criminal justice system.19 Further, they have greater overall satisfaction, improved attitudes towards and more willingness to forgive the offender, and a heightened sense that the outcome is just.20
There is no one-size-fits-all approach to justice. But providing one more choice for crime survivors — especially one that data shows reduces crime21 — is a great opportunity for the state of Michigan.