THE GOOD, THE BAD AND THE UGLY: REFLECTIONS ON S.B. 393.

restorative justice can address criminal wrongdoing

Last week West Virginia Governor Earl Ray Tomblin signed a bill creating many reforms for juvenile justice.  The bill includes a reference to restorative justice programs.  In 2007, I returned to formal education at the Center for Justice and Peace at E.M.U in Harrisonburg and earned an M.A., with a concentration in restorative justice.  During my nearly thirty year career, I have served as an assistant prosecutor in both Berkeley and Kanawha County, and in private practice, represented many criminal defendants.  Following my studies at EMU, I found that restorative justice offers a great deal of potential in addressing harm that stems from criminal wrongdoing. 

While my days working with the West Virginia legislature are behind me, I have had the chance to review the bill that  Governor Tomblin signed.  Like most bills, certain provisions work well, but other areas fall short.  This post includes my short review of the bill: the  good, the bad and some ugly.

The good:

  • The bill recognizes the potential for restorative justice in West Virginia.
  • The new law recognizes that the primary aim of restorative justice is to repair the harm against the victim and the community caused by the offender, in this situation, the juvenile.  Having both studied and taught courses on restorative justice, I am very appreciative that the legislature is recognizing that looking at the harm caused by a criminal wrongdoing is as important as looking at the punishment.
  • The new law recognizes the community involvement in addressing criminal wrong doing, allowing community members to take part in family group conferencing.  This is wonderful!  Often the victim and the community are not involved in addressing the harm that stems from criminal wrongdoing.  Including the community is a great step towards working within the community for widespread justice and peace.
  • The new law keeps the proceedings confidential, allowing for open dialogue. Confidential communications often create an environment for opportunities for healing and rehabilitation.

The bad: 

  • The bill doesn’t establish or fund a program.  It allows for the referral of certain cases, but without a program, that might be difficult to implement.  Several  cases in the Eastern Panhandle have been referred to restorative processes without a formal program.  However, a framework or program that is based in the community would be a great start to including restorative processes in more situations.
  • The bill includes referrals only for wrongdoing that includes non-violent misdemeanor offenses.  When the prosecutor, the victims the offender and the community agree, restorative justice may be suitable in a wide range of situations. For one view of how restorative justice provides opportunities in situations of criminal wrong doing, you may want to view, Meeting with a Killer.   This film, available on youtube, documents a situation where a surviving family member meets the convicted killer. 

The ugly:

  • The bill includes mandatory “sanctions.”  Restorative justice is an alternative way of viewing wrongdoing.  Rather than looking at the statute violated and the punishment that stems from the violation, restorative justice examines what harm has occurred and how the community and the offender may make right that wrong.  This new statute has three requirements for a referral of a case to a restorative justice process, including mandatory sanctions.   Addressing the harm often includes restitution, but not as a punishment or sanction, but rather to address the harm.  In a 2006 article for the ABA Journal, David J. Hines said, “Restorative justice does not seek sanctions nor speak of punishment.”   
  • The bill could be restrictively construed to preclude the use of restorative justice where it is currently permitted.  Nothing in our current law precludes referral of any a case to a restorative process by agreement.  I’m concerned that the new statute might preclude that referral unless there is a formal program established, complete with formal "sanctions."  I’ve been involved in restorative processes that were implemented by the agreement of the state, the victim and the offender, in cases involving adult offenders as well as juveniles.  I've worked on cases when the offenses were violent, as well as non-violent offense.  I hope that this new statute will not be interpreted to preclude the voluntary participation in restorative processes by stakeholders.

What's next?

If you'd like to learn more about restorative justice or the new statute, plenty of information is available.

  • On line resources:  If you have questions about restorative justice, the Department of Justice provides a great introduction to restorative justice on line.
  • Educational programs:  The Center for Justice and Peace at Eastern Mennonite University offers a series of free webinars and in addition to their full time M.A. program, offers courses during their Summer Peacebuilding Institute.  
  • Reading: I also encourage you to read Howard Zehr’s work including Changing Lenses, to be able to understand the fundamental concepts behind restorative justice.  Of course, please feel free to contact me if you have any questions about the applicability of the new law or any restorative processes.  I have served as both an advocate and a neutral facilitator in restorative justice processes.
  • The enrolled S.B. 393 is available here.