April 10, 2013

The New York Times has just released a story (“Opening Up, Students Transform A Vicious Circle” based in large part on the introduction of an old but still-innovative concept called restorative justice in the Oakland Unified School District.

You can find any number of definitions of the concept online, but this one from the Prison Fellowship International Centre For Justice And Reconciliation of Washington D.C. seems to do as well as any: “Restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is accomplished when the parties themselves meet cooperatively decide how to do this. This can lead to transformation of people, relationships, and communities.”

The Reconciliation Centre goes on the say that “restorative justice is different from contemporary in several ways. First, it views criminal acts more comprehensively—rather than defining crime as simply lawbreaking, it recognizes that offenders harm victims, communities, and even themselves. Second, it involves more parties in responding to crime—rather than giving key roles only to government and the offender, it includes victims and communities as well. Finally, it measures success differently—rather than measuring how much punishment is inflicted, it measures how much harm is repaired or prevented.”

Leave out the criminal portion, and the concept appears to work on a similar philosophy in the Oakland public schools.

According to the Times article, the OUSD program “encourages young people to come up with meaningful reparations for their wrongdoing while challenging them to develop empathy for one another through ‘talking circles’ led by [adult] facilitators…”

That approach appears to make sense and offers some hope because far too many people—young people, especially—commit offenses not because they want to cause someone harm or don’t care about the harm they cause, but rather because we live in an increasingly desensitized and self-absorbed society where it does not even occur to them that their actions are having any real and lasting effect at all on others, much less what that effect might be.

And while it can’t and shouldn’t work with all offenses and all offenders and in all situations, restorative justice is certainly applicable to some, and helps to begin to break that swift slide from suspension/expulsion to juvenile-incarceration/hard-jail-time that is so much a part of the fabric of our current society.

Restorative justice officially became a small portion of Oakland’s city justice system last December when the Oakland City Council passed outgoing Councilmember Nancy Nadel’s and Oakland City Attorney Barbara Parker’s anti-graffiti ordinance.

Conviction of violating the Oakland ordinance by tagging property brings no jail time but fines that run between $750 for the first citation to $1,500 for the third, but those fines can be waived if the offending tagger (or their parents, if the tagger is a minor) makes a written request to enter a restorative justice program created by the ordinance. The exact nature of the restoration that comes out of the particular offense has to be worked out in each case, but the ordinance logically suggests that it “may include removing Graffiti from public or private property,” with the amount of any such community service resulting from the particular offense “in proportion to the amount of administrative citation or civil penalty” that the offender was originally charged.

Entrance into the graffiti ordinance’s restorative justice program does not automatically come by the request of the perpetrator or his or her parents, but can only come first after agreement by “the victim property owner or possessor” with final approval by the City Administrator.

The ordinance makes provision for existing agencies or non-profits to run the restorative justice component on a case-by-case referral basis, with instructions that the contracted program “may seek to involve the victim as well as the offender” in the restorative justice process. In addition the contracted program both makes the decision as to what will it take to bring restoration as well as to ultimately sign off on whether or not restoration was done. Since that is one of the basic tenets or restorative justice—to bring victim and offender together to restore the whole—it would seem that the programs would almost always bring in the victims, as well as let the victims take the lead in deciding the restorative action.

It’s the “victim property owner or possessor” approval part—both in allowing a tagger to enter the restorative justice and in ultimately deciding how that justice will be determined—that I have a bit of a problem with.

Although there appear to be enough checks and balances in Oakland’s anti-graffiti ordinance, I worry about the setting of a legal precedence that allows the victims of a crime to determine the punishment. There are too many ways that this could be abused.

But far more important, giving that power to victims could lead to the opposite problem: opening the door for the perpetrators or their friends use violence or threats of violence against the original victims to coerce them into going easy on the perp’s punishment. That’s not an idle possibility in many of our high-crime neighborhoods, where intimidation of citizen victims is often the rule rather than the exception.

Clearly, neither of these possible outcomes were the intention of Councilmember Nancy Nadel, who worked on putting restorative justice into Oakland ordinance for many years. But Ms. Nadel is no longer on Council—the graffiti ordinance was passed at the end of her final term in office—and so she’s not around to help tweak the program and remove any possible bad effects.

When it approved the final text of the anti-graffiti ordinance last December, the Council deliberately left it up to the City Administrator to work out the kinks and the details of implementation. I hope that the Administrator’s office take these concerns into account, and that other members of the Council keep them in mind when reviewing the final program and overseeing its implementation.

Restorative justice is a good idea in principle, and one that could do much good in Oakland. But, as always, the devil is in the details.