Thursday, July 18, 2013

Restorative Pretrial Justice

In a recent Aspen Daily News Story, Man’s Felony Dismissed After Participation in Innovative Judicial Approach, found at, the paper tells of a man charged with extortion of a Latino couple after a car accident. The “innovative approach” is called restorative justice (or sometimes reparative justice) and has actually been around since the mid to late 1970’s. It’s based on a novel concept of addressing the needs of the victim, the community at large, and the defendant to address wrongs as an alternative to the traditional legal system that focuses on offender punishment and abstract legal responsibility, with victim and community considerations often receiving nothing more than lip service. Restorative justice looks at who has been harmed in a given situation, and sets out to restore those persons to a place before the harm took place.

What makes it “innovative,” I suppose, is the fact that prosecutors rarely get elected employing the practice; a lot of them still believe (incorrectly) that the public is fixated on punishing wrongdoers at the expense of nearly everything else, and so restorative justice is rather slow to catch on. Nevertheless, this story provides hope that certain enlightened prosecutors (or at least one of them) are willing to give it a try.

Moreover, there is beginning to emerge some pretty decent research showing that restorative justice has positive effects. In one meta-analysis of restorative justice research (the highest quality of “evidence” in an evidence-based decision making model), Latimer, Dowden, and Muise (2005) reported the following:

“Despite some methodological limitations, the results provided notable support for the effectiveness of these programs in increasing offender/victim satisfaction and restitution compliance, and decreasing offender recidivism.”

Of course, one of the main “limitations” is what’s called “self-selection bias,” due to the fact that the restorative justice process is, by its nature, a voluntary one. Random assignment of offenders to control and treatment groups will almost always undermine the foundations of the process.

Nevertheless, the restorative justice hypothesis has enormous potential based simply on logic and fairness, which is why I applaud the prosecutors in Aspen, D.A. Sherry Caloia and Deputy D.A. Andrea Bryan, for deciding to try it out. For too long we have thought that our adversarial court process has been the best process for righting wrongs. We are taught the adversarial process in our law schools and we praise it in our college civics classes. But for those of us who have been in its trenches, we have seen that the process needs a bit of work. Restorative justice, at least, gives us an alternative.