Restorative Justice — a valuable tool, but it must remain one of many in the toolbox

As reported by the Star Tribune here, the DFL is leading a push for juvenile justice reform this legislative session. At first blush, such efforts appeal to most anyone who has paid attention to the explosion of violent crime (specifically the armed carjackings being carried out so frequently by juveniles), and to the gutting of the state’s juvenile justice and correctional systems. At “second blush,” it becomes apparent that many of the proposals are a doubling down on the failed attempts at improving public safety through less accountability and less incarceration.

The foundation of the DFL proposal is “restorative justice.” The theory behind restorative justice is to put measures in place that bring offenders in touch with victims to impress upon offenders some level of remorse for their actions and empathy for the victims. The process is intended to help the victims feel part of a holistic solution that repairs the damages and hurt they experienced as well. All of this is done as a diversion from the traditional court process, reducing the baggage of a criminal record for those who successfully participate in the process.

It has value and a place in the juvenile justice toolbox, but the challenges faced by our juvenile justice system today are far too serious and expansive to be fixed by a Swiss army knife. We need a stand-up, industrial-sized tool chest filled with a wide variety of Snap-On tools — get the picture?

In the early 1990s, as a detective with the Hennepin County Sheriff’s Office, I got a case one Monday morning that involved a group of teenage boys from the Greenfield area that had gone on a Saturday night baseball bat rampage of area mailboxes. The total damage probably amounted to a couple hundred dollars. Our patrol deputies had stopped and identified the suspects, recovered evidence, and identified the victims. It would have been easy to write up a criminal case against four teens, submit it to the county attorney, and send the teens into the “system” to deal with the problem. Many thousands of dollars, and many court hours would have been spent to “adjudicate the teens delinquent.” In the end, they likely would have paid a small fine and/or restitution and walked away from a process that left little impact on them — all the while never facing their victims. Having gone that route routinely, and being left with a pretty empty feeling, I decided to try something different.

With the support of my boss, I contacted the victims, who each agreed to give the teens a chance to avoid the justice system if they followed through with replacing or repairing the mailboxes and meeting with the victims. The teens’ parents also agreed to the idea and to oversee the process. My role was to keep in contact with the victims to ensure they were satisfied with the follow-through — a refreshing role for a change.

In the end, the scenario above was successful for several important reasons — the relatively minor level of crime, victims willing to work directly with teens who had damaged their property, parents of offenders who took ownership of the problem and ensured their teen followed through, and finally, teen offenders who had no prior criminal history and who would truly benefit from the opportunity for redemption through this informal “restorative justice.”

While this makes for a good story, the circumstances are not typical — especially today. Unfortunately, far too many juveniles are involved in unthinkable acts of violence, come from broken family structures, and have significant criminal histories by their mid-teens. Armed carjackings, robberies, assaults, and murders by teenagers have sadly become commonplace. The point? Restorative Justice has a place, but in very select situations where the outcomes are likely to be positive, rather than situations that are likely to reinforce a lack of accountability. 

The Star Tribune article states the DFL push towards restorative justice “reflects an emerging consensus among judges, attorneys, and youth advocates that community-based programs are not adequate and more needs to be done to address the root causes of youth crime.” The first half of that sentence is spot-on — community-based programs have proven to be inadequate to provide public safety in the juvenile justice system. The second half of the sentence is also accurate (more should be done to address root causes of juvenile crime), but the complete statement suggests an either-or approach and completely dismisses the need for more accountability, more juvenile detention bed space, and the recognition that much of the juvenile crime we are experiencing today would not be appropriate for restorative justice measures. 

I suspect the push for restorative justice in the juvenile system might role out much the way early drug courts did in the 1990s. As a narcotics investigator, I recall far too many cases involving gang member dealers whose cases were funneled into drug court instead of traditional criminal court. Our system tends to abide by a “we built it, so they must come” mentality when it comes to specialty courts and programs. Millions of dollars spent ramping up restorative justice programs will undoubtedly result in far too many attempts to divert violent juvenile criminals from traditional criminal court. Through this process, many juvenile offenders will inevitably learn there are no consequences to their behavior, and our collective public safety will suffer.

There are a couple of positive aspects of the DFL proposals. First, the funding would create statewide programs to ensure more consistency and access from county to county. A troubled kid in one county should have the same access to opportunities as a troubled kid in a neighboring county. Second, the Department of Public Safety would be required to report annually on the programs and on the recidivism rate of the children who participated. An important detail of concern here is clearly defining what “recidivism” is. Is it a re-arrest, a new charge, a new conviction, or re-imprisonment — and over what time? Those variables can greatly affect “recidivism” reporting and can be used effectively to mute unfavorable outcomes.

Restorative justice programs have a place, but must be used appropriately and sparingly or they will be counterproductive. They must not be viewed as the end-all. The gutting of our juvenile system in recent years has left us in a precarious position.  A truly thoughtful set of proposals to address this predicament must acknowledge the need for and include a robust effort to add detention bed space, as the incapacitation of offenders is the only appropriate solution in many cases.