BEYOND RESTORATIVE BEYOND RESTORATIVE JUSTICEJUSTICE

55thth ANNUAL RESTORATIVE JUSTICE ANNUAL RESTORATIVE JUSTICE INITIATIVE CONFERENCEINITIATIVE CONFERENCE

Marquette UniversityMarquette UniversityNovember 11, 2008November 11, 2008

David M. KennedyDavid M. KennedyDirectorDirector

Center for Crime Prevention and ControlCenter for Crime Prevention and ControlJohn Jay College of Criminal JusticeJohn Jay College of Criminal Justice

dakennedy@jjay.cuny.edu212 484-1323212 484-1323

RESTORATIVE JUSTICERESTORATIVE JUSTICE

Extraordinarily powerful and Extraordinarily powerful and important ideasimportant ideas

Unnecessarily and unconsciously Unnecessarily and unconsciously limited by (usually) implicit limited by (usually) implicit frameworkframework

If we take the strengths and discard If we take the strengths and discard the limits, we end up in a place that the limits, we end up in a place that may be even more powerful and may be even more powerful and importantimportant

RJ CRITIQUE OF RJ CRITIQUE OF CRIMINAL JUSTICECRIMINAL JUSTICE

““Formal social control”Formal social control” Ineffective and damagingIneffective and damaging

Doesn’t work as well as we’d likeDoesn’t work as well as we’d like Overutilizes punishment: brutalizingOverutilizes punishment: brutalizing Stigmatizes and excludes, often permanentlyStigmatizes and excludes, often permanently Creates polarized “others” where there Creates polarized “others” where there

should be communityshould be community ““War on crime,” “war on drugs”War on crime,” “war on drugs”

Appropriates standing to state, disregards Appropriates standing to state, disregards and weakens communityand weakens community

FOR EXAMPLEFOR EXAMPLE

Baltimore:Baltimore: 60% black males 16-30 under criminal 60% black males 16-30 under criminal

justice supervisionjustice supervision Lifetime chance of prison for black Lifetime chance of prison for black

males 1:3males 1:3 Crime down dramatically while prison Crime down dramatically while prison

population continues to growpopulation continues to grow Growth of “stop snitching” movementGrowth of “stop snitching” movement

RJ ALTERNATIVERJ ALTERNATIVE

““Informal social control”Informal social control” InternalInternal

ShameShame GuiltGuilt ConscienceConscience

ExternalExternal The views of those we care aboutThe views of those we care about

FamilyFamily FriendsFriends Loved onesLoved ones CommunityCommunity

INFORMAL SOCIAL INFORMAL SOCIAL CONTROLCONTROL

More powerful than formal social controlMore powerful than formal social control Cops vs. grandmothersCops vs. grandmothers

Internal more powerful than externalInternal more powerful than external Operates without stateOperates without state

(Somewhat less true than sometimes thought)(Somewhat less true than sometimes thought) Operates more or less constantlyOperates more or less constantly Operates, usually, without permanent Operates, usually, without permanent

stigma and exclusionstigma and exclusion Can lead to “reintegration”Can lead to “reintegration”

RESTORATIVE JUSTICERESTORATIVE JUSTICE

The deliberate activation and mobilization The deliberate activation and mobilization of informal social controlof informal social control

Techniques for activating shame, guilt, Techniques for activating shame, guilt, conscienceconscience Contact with victimsContact with victims Moral engagementMoral engagement Challenging competing norms and narrativesChallenging competing norms and narratives

Mobilization of personal and community Mobilization of personal and community networks to set and enforce norms, networks to set and enforce norms, narratives, expectationsnarratives, expectations

RESTORATION AND RESTORATION AND RECONCILIATIONRECONCILIATION

Framing of offender as moral agent worthy Framing of offender as moral agent worthy of respectof respect Engagement with offender’s moral selfEngagement with offender’s moral self

Engagement with family, peers, communityEngagement with family, peers, community Weakening negative connections, Weakening negative connections,

strengthening positive onesstrengthening positive ones Central goal of keeping offender in Central goal of keeping offender in

community, or reestablishing legitimacy community, or reestablishing legitimacy and standingand standing

Symbolic and actual reintegrationSymbolic and actual reintegration

FRAMED AS FRAMED AS FREESTANDING FREESTANDING ALTERNATIVEALTERNATIVE

Extremely powerful and attractive set of Extremely powerful and attractive set of ideasideas

Couched from beginning in conscious Couched from beginning in conscious opposition to existing criminal justice opposition to existing criminal justice system and its weaknesses and harmssystem and its weaknesses and harms

Becomes in practice Becomes in practice alternative case alternative case processing system, processing system, sidestepping criminal sidestepping criminal justice system, avoiding the damage it justice system, avoiding the damage it does and creating new benefitsdoes and creating new benefits

PROBLEMS WITH PROBLEMS WITH EXISTING RJ EXISTING RJ FRAMEWORKFRAMEWORK

Unrealistic about actual role of coercive Unrealistic about actual role of coercive state power in restorative justice processstate power in restorative justice process

Disregards moral standing of stateDisregards moral standing of state Disregards state interest in public safety Disregards state interest in public safety

and in securing a monopoly on criminal and in securing a monopoly on criminal enforcementenforcement

Disregards role of sanction and Disregards role of sanction and deterrence in underpinning good deterrence in underpinning good behavior and positive norms and behavior and positive norms and narrativesnarratives

PROBLEMS WITH PROBLEMS WITH ALTERNATIVE CASE ALTERNATIVE CASE

PROCESSING FRAMEWORKPROCESSING FRAMEWORK Some cases not appropriate, even in Some cases not appropriate, even in

principle, for classic restorative principle, for classic restorative justicejustice Domestic violenceDomestic violence

Some cases too seriousSome cases too serious Cannot accommodate need for Cannot accommodate need for

incapacitation and/or formal incapacitation and/or formal punishmentpunishment

MORE PROBLEMSMORE PROBLEMS

Handcuffs RJ to existing law and police Handcuffs RJ to existing law and police practicepractice RJ new “back end,” but state and police still RJ new “back end,” but state and police still

“front end”“front end” Focuses on Focuses on individual incidents individual incidents and and

individual offendersindividual offenders Well-established critique from, for example, Well-established critique from, for example,

problem-oriented policingproblem-oriented policing Fundamentally reactiveFundamentally reactive No strategic focusNo strategic focus No attention to underlying problemsNo attention to underlying problems

EXTREMELY POWERFUL EXTREMELY POWERFUL IDEAS: VERY LIMITED IDEAS: VERY LIMITED

APPLICATIONAPPLICATION In practice, ends up restricted to In practice, ends up restricted to

relatively minor incidents, mostly relatively minor incidents, mostly involving juvenilesinvolving juveniles Sweeping critique and response; limited Sweeping critique and response; limited

and low-level applicationand low-level application Restorative justice has been hobbled by Restorative justice has been hobbled by

an unconscious attachment to an unconscious attachment to traditional criminal justice and by traditional criminal justice and by framing itself as an alternative case framing itself as an alternative case processing systemprocessing system

RJ IDEAS TOO RJ IDEAS TOO IMPORTANT FOR THISIMPORTANT FOR THIS

Drop “alternative case processing” frameworkDrop “alternative case processing” framework Not about individual incidents and cases any Not about individual incidents and cases any

longerlonger Need not be about those under arrestNeed not be about those under arrest GroupsGroups ““Problems”Problems”

Can accommodate serious offenses and Can accommodate serious offenses and offendersoffenders

Can involve state authority and deterrence, Can involve state authority and deterrence, formal sanctionformal sanction

““FOCUSSED FOCUSSED DETERRENCE” DETERRENCE” FRAMEWORKFRAMEWORK

““Boston model,” “Ceasefire,” “High Point”Boston model,” “Ceasefire,” “High Point” Strategic intervention aimed at specific Strategic intervention aimed at specific

problemsproblems Group and gang violenceGroup and gang violence Overt drug marketsOvert drug markets

Three-pronged interventionThree-pronged intervention Certain formal sanction: effective formal deterrenceCertain formal sanction: effective formal deterrence Help and servicesHelp and services ““Moral voice of community”: or restorative justiceMoral voice of community”: or restorative justice

Going on in Milwaukee now, with Marquette: Going on in Milwaukee now, with Marquette: Safe StreetsSafe Streets

CIRV – Network Analysis of CIRV – Network Analysis of Street SetsStreet Sets

Red – Red – BeefBeef

Green – Green – AllianceAlliance

Blue – VolatileBlue – Volatile

CRIMINAL HISTORIES OF CRIMINAL HISTORIES OF CINCINNATI GROUP CINCINNATI GROUP

MEMBERSMEMBERS

GROUPS IN CINCINNATI GROUPS IN CINCINNATI HOMICIDESHOMICIDES

VIOLENCE AS A VIOLENCE AS A GROUP/“STREET” DYNAMICGROUP/“STREET” DYNAMIC

Much violence group-on-group “beefs” or Much violence group-on-group “beefs” or vendettasvendettas

Powerful peer effects: not just an individual Powerful peer effects: not just an individual decision. Street code: this is all OK, no decision. Street code: this is all OK, no alternatives, not my fault, don’t mind dying, alternatives, not my fault, don’t mind dying, prison’s not a problem, violence is requiredprison’s not a problem, violence is required

May not entirely believe this as individuals, May not entirely believe this as individuals, but group dynamic dominatesbut group dynamic dominates

Seen as supported/tolerated by community: Seen as supported/tolerated by community: anger expressed at history, police, whitesanger expressed at history, police, whites Why community “moral voice” so importantWhy community “moral voice” so important

MANY KEY PLAYERS KNOWN, MANY KEY PLAYERS KNOWN, EVEN WHEN NOT LEGALLY EVEN WHEN NOT LEGALLY

AVAILABLEAVAILABLE

Legal system needs legal predicateLegal system needs legal predicate Other ways of intervening do notOther ways of intervening do not RJ framework can often be appliedRJ framework can often be applied

CONSEQUENCESCONSEQUENCES Group accountability for homicide: Group accountability for homicide:

group dynamic, group sanctiongroup dynamic, group sanction Last resortLast resort Explained ahead of timeExplained ahead of time By any legal means: “pulling levers”By any legal means: “pulling levers” Most serious sanctions on impact playersMost serious sanctions on impact players

Careful promise: sanction on next Careful promise: sanction on next homicide; on most violent grouphomicide; on most violent group

Reversal of pro-violence peer Reversal of pro-violence peer pressurepressure

““Honorable exit”Honorable exit”

HELPHELP

Focused servicesFocused servicesEmployment Employment EducationEducationTreatmentTreatmentMentoringMentoringOthersOthers

““COMMUNITY MORAL COMMUNITY MORAL VOICE”: RJ IN A VOICE”: RJ IN A

DIFFERENT SETTINGDIFFERENT SETTING Clear, direct, community standClear, direct, community stand Figures respected by offendersFigures respected by offenders

ParentsParents Ministers, mothers, activistsMinisters, mothers, activists Offenders and ex-offendersOffenders and ex-offenders

Set community normsSet community norms Make offenders own what they doMake offenders own what they do Challenge street codeChallenge street code Love the sinner but hate the sin: Love the sinner but hate the sin:

bring them back inbring them back in

MORAL VOICE, CONT.MORAL VOICE, CONT. Set community standardSet community standard

““There is no excuse.”There is no excuse.” ““We need you, you’re better than this.”We need you, you’re better than this.”

Moral engagementMoral engagement ““Who thinks it’s OK for little kids to get shot?”Who thinks it’s OK for little kids to get shot?” ““Do you want your mother standing here?”Do you want your mother standing here?”

Challenge street code/normsChallenge street code/norms ““Shot any CIA agents lately?”Shot any CIA agents lately?” ““Who helped your mother last time you were Who helped your mother last time you were

locked up?”locked up?” ““Do you think your friends won’t flip on you?”Do you think your friends won’t flip on you?”

Group Member Involved (GMI) Homicides in Cincinnati July 2006 - March 2008

0

1

2

3

4

5

6

7

8

9

Jul-06

Aug-06

Sep-06

Oct-06

Nov-06

Dec-06

Jan-07

Feb-07

Mar-07

Apr-07

May-07

Jun-07

Jul-07

Aug-07

Sep-07

Oct-07

Nov-07

Dec-07

Jan-08

Feb-08

Mar-08

# of

hom

icid

es

Likely GMI Homicide Non-GMI Homicide

Call-in sessions 7/31

Call-in sessions 10/03

““HIGH POINT” HIGH POINT” STRATEGYSTRATEGY

Closes overt community drug marketsCloses overt community drug markets Explicitly addresses racial conflict and Explicitly addresses racial conflict and

unintended harms from ordinary drug unintended harms from ordinary drug enforcementenforcement

Involves dealers’ families much more Involves dealers’ families much more effectively than gang strategy: large effectively than gang strategy: large lessons herelessons here

Closed market largely sustained by Closed market largely sustained by new community standardsnew community standards

OTHER EXAMPLESOTHER EXAMPLES

Street robberiesStreet robberies Domestic violenceDomestic violence Prison issuesPrison issues ????

SO: RESTORATIVE SO: RESTORATIVE JUSTICEJUSTICE

Is an even bigger set of ideas than many Is an even bigger set of ideas than many advocates suspectadvocates suspect

Works with serious offendersWorks with serious offenders Can be adapted to core underlying problemsCan be adapted to core underlying problems Need not wait for police or state to actNeed not wait for police or state to act Need not focus on alternative case Need not focus on alternative case

processingprocessing Engages – very effectively – with community Engages – very effectively – with community

standards and serious offenders’ consciencesstandards and serious offenders’ consciences Can fit seamlessly with formal social controlCan fit seamlessly with formal social control

TRANSFORMATIVE TRANSFORMATIVE POSSIBILITIESPOSSIBILITIES

Greatly increase public safetyGreatly increase public safety Address racial conflictAddress racial conflict Reduce incarcerationReduce incarceration Strengthen communitiesStrengthen communities Substitute deterrence for Substitute deterrence for

enforcementenforcement Create pathways for seasoned Create pathways for seasoned

offendersoffenders