Restorative justice advocates gather at UVM

These can be challenging times for government regulators amid low levels of public trust. In contrast with bureaucracies that generate resistance as they become more domineering, organizations that practice "responsive regulation" look like an appealing alternative.

The notion of responsive regulation has something in common with restorative justice, an approach that summons community resources to address criminal behavior and its impact. Both responsive regulation and restorative justice draw heavily on social networks in an effort to build trust and understanding in ways that can forestall bureaucratic or legalistic fiats.

Such is the vision of Valerie Braithwaite, an Australian academic who spoke in Burlington Wednesday afternoon. Her remarks had particular resonance in Vermont — partly because she spoke specifically of the shortcomings of the child protection system in Australia, and partly because she was addressing a conference on restorative justice, which has practitioners and advocates across the state.

The conference, spanning four days, has drawn about 350 people interested in learning about resolving conflicts and repairing damage caused by criminal behavior through a non-adversarial community process — a process that can bring offenders and their victims together to discuss and agree on reparations. Restorative justice has been practiced on various levels in Vermont for more than a decade.

Braithwaite's thumbnail description of responsive regulation: You begin with conversations to make sure that the people to be regulated understand what's expected of them and why. Then you intervene only to the extent necessary to get their compliance. Just as in the case of restorative justice, responsive regulation relies on what Braithwaite called "social capital" at the community level that, ideally, can help inform the decisions of formal regulators and legal authorities.

Restorative Vermont

Advocates of restorative justice, which has a bigger foothold in Vermont than in most other states, often portray it as an alternative legal model distinct from retributive justice, the prevailing system. In the latter, guilt is established and the offender is receives punishment, or retribution. In the restorative model, the offender and the victim, along with other community, collaborate voluntarily in a process that seeks to right the wrong.

Vermont has a statute dating from 2000 that affirms restorative justice as a state policy: "It is the policy of this state that principles of restorative justice be included in shaping how the criminal justice system responds to persons charged with or convicted of criminal offenses, and how the state responds to persons who are in contempt of child support orders."

"It is the intent of the General Assembly that law enforcement offficials develop and employ restorative justice approaches whenever feasible and responsive to specific criminal acts ..."

The law does not designate anyone to enforce the policy, however, and only a small fraction of criminal cases — typically misdemeanors, or lesser crimes — get restorative justice treatment.

Jan Peter Dembinski, a lawyer in Woodstock who has written about restorative justice in the Vermont Bar Journal, argues that the policy is widely ignored in the legal community and, in effect, is not taken seriously. Why not?

"Because few attorneys, judges, and legislators, really want to spend the time to fathom and face the implications of embracing a new justice paradigm — which is exactly what restorative　justice　is — especially when our criminal　justice system relies so heavily on plea bargaining, which is only a pseudo form of justice that exists for the convenience of the judges and attorneys," Dembinsky wrote in an email.

Vermont does have an extensive framework in place for handling cases in "restorative" ways. Twenty community justice centers around the state, for example, take diversion referrals from police. Someone cited for a crime might be told that the citation will be expunged or a fine reduced if he or she goes through a restorative process — meeting with victims or a panel of citizen volunteers and agreeing to a plan for restitution.

Burlington's Community Justice Center, for example, handles about 300 cases a year, most of them low-level crimes, such as retail theft or vandalism. Victims and offenders meet with a panel and come up with a legally binding reparative contract that might include restitution, community service, or even a letter of apology, said Karen Vastine, coordinator.

Restorative justice can also figure into court diversion — where a state's attorney will waive prosecution if the accused goes through a restorative process — or as a condition of probation. About 10 percent of misdemeanor charges are resolved this way, said Willa Farrell, court diversion director.

A program called Circles of Support and Accountability assigns teams of screened volunteers to prison inmates due for release who are deemed of moderately high risk.

"The Justice Department has funneled thousands and thousands of dollars into Vermont to help our community justice centers," Dembinski said. "I don't think any other state has such an infrastructure in place."

Offenders and victims only participate if they're willing. Many offenders aren't made aware of the option, according to Dembinski. If the state's policy were thoroughly implemented and if many more of Vermont's defendants chose to participate, however, the state's restorative justice system would likely be overwhelmed and require more resources, said Derek Miodownik, who oversees restorative justice programs for the Department of Corrections. The community justice centers rely heavily on volunteers and operate with minimal paid staffs.

Still, some lawyers have concerns. Stephen Fine, a defense lawyer in Athens, said his only objection has been that "one never knew what one's client was going to be called upon to do."

Robert Appel, a former defender general, said he was "a firm believer in restorative justice" as long as it does not come after the plea, conviction or sentence. "It should be a carrot, not another stick," he said, adding: "When done properly, restorative justice is the way to go."

Room for growth

This week's symposium, held at the Davis Center at the University of Vermont, was organized by the Community Justice Consortium, with support from UVM, the state's Agency of Human Services, Vermont Law School and other partners.

The last such conference in Vermont was in 1999 and drew a similar turnout, said Gale Burford, an emeritus UVM professor and chair of the organizing committee.

Braithwaite described what she called a dysfunctional child-protection system in Australia, buffeted by highly publicized child deaths, a series of major inquiries, poor outcomes for children and high caseloads. Her research has shown that the fault lies not with child protection workers but with the overall system, which apparently is prone to something she calls "regulatory authoritarianism."

One antidote, she suggested, is more dialogue between "community workers at the bottom" — social workers, police, neighbors, church members and so on — with regulatory higher-ups.

"My main point is to get that conversation going," she said.

She said that community workers who know about a family's case should be involved at every step of the regulatory process.

Her comments echoed the role that engaged community members might play at various stages of the legal process. In Vermont, restorative justice has plenty of room to grow, advocates believe.

In progress report completed in March, "Strengthening Restorative Justice," a group of representatives declared that "Vermont is strong in its capacity for restorative justice."

"We have the foundations for expanding the application of restorative justice principles and practices across the system of justice," the report states. "The history over twenty years of experiment and study has demonstrated by efficacy and citizen approval."

Contact Tim Johnson at 660-1808 or tjohnson@burlingtonfreepress.com