January 6, 2013

Restorative Justice for Murder?

By Cynthia Alkon

Last week the New York Times reported an interesting, and unusual, use of restorative justice in a murder case in Florida.  The parents of a young woman who was killed by her boyfriend, along with the boyfriend, his parents, and the prosecutor, all participated in a pre-trial restorative justice process.  Ultimately the prosecutor offered a plea deal which was less than the maximum and seems to have been based on both the recommendations of the victim’s parents and the prosecutor’s evaluation of the case following the restorative justice process.  The defendant accepted a plea deal of twenty years in prison with a lengthy (ten year) probation term.

It is unusual since restorative justice is rarely used as a pre-trial process in violent crimes in this country.  There are restorative justice programs for murder cases after the case is resolved in the criminal justice system, and these programs are often very specific about not allowing the offenders to use their participation to their advantage in parole or other proceedings. For one account of a post-conviction restorative justice process, see here.  For a more detailed account of a few programs in Texas and the victim focused approach in these types of restorative justice proceedings, see here .

The case in Florida raises some interesting questions which are always present in discussions about restorative justice.  For example, should victims determine the ultimate sentence?  One concern is that allowing victims to determine outcomes will inevitably lead to similarly situated defendants being treated differently. Some take the view that the state, not private individuals, who should decide on appropriate plea offers and sentencing, and that it should be, as the prosecutor in this case in Florida said, “ …  based on cool reflection of the facts and the evidence in the case…”   The defendant in this case clearly accepted responsibility and was deeply sorry for his actions (he surrendered at a local police station almost directly after the killing).  Do we think that an offender who is full of remorse and sorrow for their actions should be rewarded?  These questions are even more important in the context of a criminal justice system that heavily penalizes those who contest their guilt and go to trial.

One question that the article fails to raise is perhaps the most difficult:  what about offenders who are not white and middle class and whose family and victims don’t have the resources to find out about and advocate for such an alternative process?  Race and class are a constant factor in our criminal justice system and cases such as this should require us all to think more critically not just about the unusual processes some offenders are able to take advantage of, but whether these processes should be more widely available for those who are less privileged and advantaged.

The full article from the New York Times is available here.

 

Last 5 posts by Cynthia Alkon

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Comments

  • Carlye Ignatenko says:

    All of these articles make you consider the importance of an apology for murder victim’s family. You can argue that a family member, faced with the overwhelming emotions of accepting an apology for such a loss, may be manipulated by heightened emotions to accept a reduced sentence for the offender. However, that does not appear to be the case in either of these articles. A family member of the victim is able to greatly influence the sentencing of an offender at trial. I believe that in situations like the ones presented in this post the victim’s family and the offender are in better positions to move forward rather than holding onto the poisonous emotions resulting from the consequences of the violent act.
    Carlye Ignatenko

  • Ryan Heath says:

    Interesting article, and great points raised. I also believe that upper-class families are more inclined to search and discover a relatively unknown resource such as restorative justice. This could potentially result in lesser punishment for criminals who seek the middle/upper-class as their victims. Meanwhile, criminals attacking lower-class individuals will not have the same benefit.

    I also wonder whether restorative justice is appropriate in all instances. The criminal justice system is certainly aimed at offering relief to the victim and the victim’s family. However, the criminal justice system is also aimed at protecting the public, through incarceration, by preventing the criminal defendant from harming others. This public view of punishment is not served by restorative justice.

  • John Cody Acuff says:

    To state the obvious: the value of restorative justice (“RJ”) is almost completely dependent on how one views the criminal justice system and the purpose(s) of criminal law. On the one hand, if the system’s purpose is general deterrence then RJ is arguably valueless because, as you stated in your post, similarly situated defendants will receive different outcomes. Take for example the Joshua Brent of the Dallas Cowboys who is charged with intoxicated manslaughter. The victim’s family has publicly announced its support for Brent, and yet just the other week another one of Brent’s teammates was popped for a DUI. Not to confuse correlation with causation, but you can see my point: by taking a RJ approach to Brent’s crime, the general deterrent purpose of our DUI laws are almost assuredly lost because people–e.g. his teammates–are still committing the same acts.

    On the other hand, if the system’s purpose is restitution for the victim/an expression of social values, then RJ seems to have its place. The Grosmaires are no doubt in a much better place emotionally having forgiven Jack Campbell, and as a society we should promote such behavior because feelings of ill-will and hate are nothing but destructive and disruptive.

    The problem, therefore, is how to reconcile these two purposes/positions. Perhaps the best approach is to simply piggy back one off the other. As outlined in this article http://www.nbcbayarea.com/news/local/Restorative-Justice-Helps-Kids-in-Oakland-193851611.html, maybe the solution lies in applying RJ to younger offenders, and then take a hard-line deterrent approach with older offenders, such as Joshua Brent.

  • Lawyer Jim says:

    Nice article. In short, victims should not have a hand in deciding sentence length. Who is to monitor their judgement skills? It is more likely that victim survivors will be entirely subjective and emotionally charged. We have judges for a reason…

  • Mark Clasby says:

    A victims family will certainly be emotionally attached, but they were the ones directly affected by the offender. I believe they should be consulted by the prosecution’s office at the very least for an opinion on how they would like to proceed.

    Punishment of criminals is to help the public at large. And there are certainly a number of criminals who may not be able to be reformed, but I think we use that as an excuse.

    If people actually showed forgiveness and compassion, it could go a long way. Its possible people will try and use something to their advantage. But in those times, I believe the judge or attorneys would be able to see through it.

    Allowing a family to have a say in how a person is punished could be a huge help for them, and I believe these families are hurting more than the public at large is.

    I would like to see more restorative justice in the future.

  • Lawyer Jim says:

    @Mark

    I see your point of a “consultation”. That makes sense. But is it good for the “public at large” for emotionally charged people to be deciding on the life of a human? The whole situation has to be approached with due caution. If you make a sweeping “restorative justice” law, I would suggest it is an underestimation of the wrong decisions that can come from mangled emotions. Time heals and the family, or whomever, may think differently after a while. Sometimes compassion grows from devastating events, but sometimes it does not. More often not. More often than not, it evokes deeper cruelty. The ideal is compassion, but this is far from the norm.

    I would like to see more “consultations”, but that is the extent of it…just a consultation.

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