Exploring an alternative to crime and punishment
“I spent 28 years in prison,” Armand Coleman was saying to the Harvard Law School students and professors gathered over Zoom on an early spring afternoon. For 22 of those years, he lived in a maximum-security prison; for 12, he was in solitary confinement. “But the time I spent in the restorative-justice program was the hardest thing I’ve ever done,” Coleman said. “It just…” He paused for a moment. “It was very difficult to come to terms with what I did, and also to come to terms with the things that happened to me that turned me into the person I was.”
Coleman and his friend, Emmanual “Noble” Williams—both former inmates at MCI Norfolk, one of the Commonwealth’s oldest and largest prisons—were guest speakers in senior lecturer Nancy Gertner’s class on mass incarceration and sentencing law. They’d come to talk about an approach to criminal justice that has gained ground during the past couple of decades as an alternative to the prevailing legal process. Restorative justice focuses not on prosecution and punishment, but on harm done and how to repair it. The men had come to talk about how completely it had changed them.
The term “restorative justice” these days describes an increasingly broad collection of practices and programs, in settings ranging from prisons to schools to workplaces. It is the concept that animates the American debate over reparations for slavery, and at its most far-reaching, restorative justice drives the work of truth and reconciliation commissions like those convened in South Africa and Rwanda in the aftermath of apartheid and atrocity.
In the criminal context, restorative justice most often involves face-to-face meetings between a victim and an offender (though practitioners don’t use those words, preferring descriptors like “affected party” and “responsible party,” because “victim” and “offender,” as one advocate explains, “leave people fixed in time,” and restorative justice is all about change). These meetings—often called “circles”—are also attended by members of the wider community: family, friends, other people affected by the crime. And by the time everyone sits down together, weeks or months of planning and preparation have gone into the event, as restorative-justice facilitators first meet separately—with both victim and offender—to gather information and to discuss in detail the expectations and structure of the coming dialogue and the process as a whole.
When the face-to-face conversation takes place—and sometimes there is more than one—each party speaks, one at a time and without interruption, about the crime and its effects, and about the circumstances and life histories leading up to it. The person who has committed the crime takes responsibility, expresses remorse, and offers a detailed public apology; victims give voice to their pain, their feelings, and their needs. Then the group comes to consensus on a set of actions that the offender can take to meet those needs, repair the harm, and prevent further offenses.
To date, 45 states have passed laws permitting the use of restorative justice in at least some criminal cases. Programs typically function in one of three ways: as a form of diversion from the criminal process, allowing offenders—especially young or first-time offenders—to avoid charges and a conviction; as a form of alternative sentencing; or, in more serious cases, as a way to reduce a criminal sentence. The program Coleman and Williams took part in was a fourth kind: initiated years after their convictions, it did not influence the men’s sentences or release dates, but its deeper purpose was the same—to help participants take responsibility for their wrongdoing and understand themselves better, and, to the extent possible, “make things right,” as Coleman put it.
Photograph by Stu Rosner
In Gertner’s class, he and Williams were accompanied by a third speaker, Touroff-Glueck professor of law Adriaan Lanni, who for the past three years has taught a course on restorative justice, and this year published a paper, “Taking Restorative Justice Seriously,” that argued for the concept’s expanded use—“thoughtfully and gradually”—in part as a way to help reduce incarceration, but also as a more effective and humane method for dealing with crime. She regularly invites Coleman and Williams to her own classroom; she also invites crime survivors who have found restitution in restorative justice. “I think that might actually be the most important thing I do at Harvard Law School,” she says. This spring she introduced her students to Janet Connors, whose son was murdered in 2001. Connors sought out a dialogue with the men convicted and eventually formed a deep connection with one of them. She is now a pioneering restorative-justice practitioner and activist in Boston. “There’s research and teaching on restorative justice,” Lanni says, “but hearing the experiences of people and how it’s changed their lives—I’ve had many students tell me that that’s what altered their view of the criminal legal system.”
That afternoon in Gertner’s class, Lanni helped steer the discussion, and Coleman laid out for students the basics of the restorative-justice program at MCI Norfolk. Operating within the prison, it’s largely run by the prisoners themselves, men for whom questions of conviction and sentencing were settled long ago. Many of them know they are never going home. “These men are lifers,” Coleman told the students. “Most of them have been in for 20 years, 30 years, some 40 years.” Yet restorative justice offers them something needed: accountability, self-knowledge, repair, healing. Programs based on a similar model operate inside other prisons around the country, facilitated by volunteers. Norfolk’s began after tensions between rival gang members in 2010 escalated to a brawl that ended with the prison’s youngest inmate, a newly arrived 18-year-old, on a medevac flight out. “After that,” Coleman said, “several of the men came together and figured that they needed to do something to make space for the young men, to bring healing to our community.”
Coleman arrived at the prison just as the program was getting started, and he didn’t fully anticipate what he was getting into. “When I started the process, I already had two decades incarcerated. And in all that time, I had never spoken about my crimes, even to my codefendants, even to my closest comrades.” He went to prison at 17 for murder. After he was locked up, surviving became easier if he didn’t think about why he was there. But programs like the one at Norfolk include a questionnaire about the crime and its impact: “It basically takes you through the whole gamut of how you hurt somebody and how you were hurt and how you could heal,” he said. Writing out his answers, he wept for the first time since arriving in prison.
The shattering moment for Williams, who spent 10 years in prison for home invasion and attempted murder, came later, at a “retreat” in the prison’s auditorium, attended by inmates’ families and friends and a panel of “surrogate” victims (people who’ve suffered crimes similar to those the men had committed, who stand in as participants in restorative-justice circles when the actual victims cannot be present). The men make their public apologies from a podium, after months of work and internal searching. Williams remembered going back to his cell briefly to prepare himself. “I almost didn’t come back out,” he said. “I’ll never forget, I was standing in my cell, staring out the window, crying. I was shaking. Because I really got to see the reality of me starting a gang and how I had made certain parts of my community unsafe, which led to people getting murdered, to people too scared to go to the park.”
“A Process of Making Things Right”
Restorative justice may seem like a new idea—it is such a radical departure from the current system. But in reality, it is ancient. The concept has origins with indigenous peoples around the world, including Native American and Canadian First Nations civilizations. In New Zealand, where all juvenile crimes except murder go through a restorative process and adult crimes are automatically referred for similar consideration, the genesis lies in Maori traditions. In Africa, the philosophy that undergirds restorative justice is ubuntu, a complex term that translates roughly as “A human being is a human being because of other human beings.” When South Africa embarked on its reconciliation process after apartheid, ubuntu provided the ethical framework.
The modern history of restorative justice in the West begins with Howard Zehr, the son of a Mennonite church leader, who left academia in the late 1970s to found the country’s first victim-offender reconciliation program, in Elkhart, Indiana. That program followed a model of restorative justice Zehr had developed largely from his own faith, mining the Bible and his Mennonite beliefs for a set of guiding principles. Many of them echo indigenous ideas. “The key to Old Testament justice was the concept of Shalom—of making things right, of living in peace and harmony with one another in right relationship,” Zehr wrote in a 1985 paper titled “Retributive Justice, Restorative Justice.” “The test of justice, then, was not whether the right rules, the right procedures, were followed.…Justice is to be tested by the outcome, not the procedures, and it must come out with right relationships. Justice is a process of making things right.”
In 1990, Zehr collected what he’d learned about restorative justice into Changing Lenses, a foundational book that called for a new paradigm in crime and punishment. One of its central tenets, which has guided countless other practitioners since, is what are known as the “three questions” of restorative justice: “Who has been hurt? What are their needs? Who is responsible for righting the harm?” By contrast, Zehr observed, a legal system built around punishment asks very different questions: “What rules were broken? Who did it? What do they deserve?”
Photograph courtesy of sujatha baliga
Another question is also crucial: “What happened?” That may be, in fact, the most important question that gets asked and answered in restorative-justice circles, believes sujatha baliga ’93, a practitioner in Oakland, California, who in 2019 won a MacArthur Fellowship for her work. When things go terribly wrong, says baliga (who prefers to lowercase her name), the need to know what happened and why—and to hear it directly from the person who committed the crime—is one of the deepest and most urgent that survivors feel.
It is a need she herself has felt. Growing up in an immigrant family in Pennsylvania, baliga was sexually abused by her father from as early as she can remember. He never apologized, and the abuse stopped only with his death, when she was 16. As an undergraduate, her intention was to become a prosecutor and put other abusers behind bars, and so after graduation, she spent a couple of years as a victim advocate, working in the areas of domestic violence, sexual assault, and rape crisis. And then, in her mid twenties, after mailing her law-school applications, she took a trip to India, where the weight of her childhood trauma and anger caught up with her. Amid a nervous breakdown and at the suggestion of a Tibetan family she had met while backpacking, she wrote to the Dalai Lama for help and advice. To her surprise, he responded by asking to meet with her, and the hour she spent with him that spring, she says, set her on a path toward healing and forgiveness—and ultimately toward restorative justice.
Other survivors’ stories contain more quotidian details, but the threads are similar. Janet Connors has spoken about the anger and emptiness she felt after her son’s killers were convicted, and a nagging dissatisfaction that nudged her to try to engage with them. Danielle Sered, who founded the New York-based program Common Justice and whose book, Until We Reckon, has become a pivotal text in the restorative-justice field, is a rape survivor. She has said that when victims are offered the option of sitting down with their offenders, 90 percent say yes.
That matches baliga’s experience, too. Within the first week of law school, she realized she couldn’t be a prosecutor. Instead she became a public defender in New York and Santa Fe, and later moved to California to work on death-penalty appeals. But being a defense attorney still didn’t feel quite right. A Buddhist, she found herself increasingly drawn to the system of justice that existed in Tibet before the Chinese occupation, with its focus on repair and healing for all involved. In 2008, she left the law to start a restorative-justice program for juvenile offenders, and eventually led the restorative-justice project at Impact Justice, an organization focused on research and reform. There, baliga specialized in cases involving sexual abuse and intimate-partner violence; she left last year to write a book on forgiveness and help advise other organizations.
People often get restorative justice wrong, she says. “They think it’s just everything kinder, gentler.” Really, it’s neither. For one thing, as baliga explained in a 2017 lecture at Harvard Divinity School (HDS), “If we’re going to ask these questions about who was harmed and what do they need, we can’t gloss over this word ‘harm,’ right?” Sometimes the harm is unthinkable. In 2012, a New York Times Magazine story chronicled a difficult case baliga facilitated between a 19-year-old who had murdered his fiancée and the parents of the murdered girl. It is a wrenching narrative of pain, loss, and seemingly impossible grace.
Plus, she adds, the entire process is designed to meet the needs of victims. Perhaps counterintuitively, she says, victims’ needs are more readily met in a circle than in a courtroom. The adversarial structure of the criminal-justice system routinely pushes offenders to downplay or deny their crimes, and those who plead guilty frequently plead to charges that are different from the actual offenses they committed—sometimes less severe, but at other times much more severe—and so survivors are often left with no real answer to that deeply urgent question, what happened. Restorative-justice programs that work as a form of diversion from conviction, intervening (as Impact Justice does) before charges are filed, are better able to elicit answers, baliga says. They are also “more empowering to survivors, and more accessible to survivors of color.” One reason she never reported her father was because of the potential consequences for her family: immigration problems, or her own removal to a new home with a language and culture she didn’t know. Also, reporting him would have meant giving up her say in any consequences, her “ownership” of the offense: “If I had reported it, it would have been the state versus my father, not me versus my father,” she points out. “And what does the state do? It exacts punishment. It does not repair the harm done to me.”
“I think survivors have been sold a bill of goods,” baliga says, “that the criminal legal system is real justice.”
Of the current carceral system, she says, “If you actually asked survivors what we needed, it would not be mass criminalization. No one would have designed this, including the people most impacted by harm….I think survivors have been sold a bill of goods, that the criminal legal system is real justice.”
And so her life’s work has been an effort to shift the paradigm, to “share the story that there is healing and resolution and happiness and thriving on the other side, when no criminal legal engagement ever happened.” One imperative for making this healing possible, she insists, is taking the necessary time to let the process play out. “Justice moves at the speed of trust,” baliga told the HDS audience, and that means not shortchanging any part of the procedure. “Time is a great challenge to our work.”
Another imperative revolves, again, around survivors: “The entire process, leading up to getting into the room where the circle takes place, needs to be about helping the person who’s experienced the harm feel empowered to set the terms,” baliga says. “I think a big problem with some restorative processes is that people think they can just throw people in a room together and have it work out.” The process becomes equally misguided when “it’s driven more by trying to prevent somebody from going to prison than it is from holding both parties with equal compassion and concern.” Yet equal compassion is called for, baliga says, because people who have caused harm have usually experienced it themselves. Offenders, very often, are also victims.
“What’s Your Story?”
Just as transformative for offenders as the recognition of their own accountability is the work of examining—often for the first time—the circumstances in their own lives that led to the crimes they committed: the violence, abuse, injustice, or poverty that shaped them. This is not the same as absolution. It is a necessary full accounting. Williams remembered finally making that connection: “Before I committed my first crime, many, many crimes were committed against me,” he said. Restorative justice redirected him in a way he didn’t see coming. “The first time I felt human, the first time I felt seen, was in a circle,” he said. “Someone asked me, ‘What’s your story? What’ve you been through? How you feel?’”
Harvard legal scholar and human-rights expert Martha Minow lays out the paradox in her book When Should Law Forgive?—which advocates a more restorative criminal justice system in the United States and draws an analogy between child soldiers in places like Sierra Leone and young gang members in American cities (read the review, “Forgive, but Don’t Forget,” November-December 2019, page 64). The 300th Anniversary University Professor explains what she sees as the “concentric circles” that make room for empathy and forgiveness: “Concentric circles of people, incentives, and causes influence violations of the law,” she writes. In an interview, she elaborates: “We’re a nation that is so ready to blame other people. And I think we’re in search of, and in need of, ways to see our interconnections.…Finding ways for people to actually encounter one another as human beings is an important ingredient here, and that, at its core, is one thing that restorative methods allow.”
For Coleman and Williams, all of this was a revelation. Sitting in a circle with facilitators and other inmates at Norfolk, they revisited childhoods marked by addiction and abuse within their families, gangs and violence in their communities. Williams recalled that as child, “It was safer in the projects than it was in my house.” He came to realize, he said, that by founding a gang, he was, in part, “creating something so I could be safe.”
“Once you detail what happened to you,” Coleman said, “you go through a whole process.” One long-buried memory he shared with students took him back to second grade and an abusive teacher, whose side his mother took after he was accused of an infraction he didn’t commit. Coleman was suspended from school and then beaten when he got home. Afterward, he disliked school and distrusted his mother. “I really felt like I had nobody,” he said. “I started fighting every day in school.…I can remember myself disconnecting from my mother and trying to find other people to connect to. Until, eventually, I connected with my uncles, who were involved in the street life.”
Analyzing the Data
In recent decades, numerous restorative-justice programs have sprung into existence. A few operate entirely outside the legal system, without ever involving any authorities; others work with local police departments and district attorneys’ offices. Methodologies vary from place to place, too—making it more difficult to assess the effectiveness of the underlying concept: most analyses have focused on juvenile and first-time offenders. But recent rigorous, randomized studies find that restorative justice typically does a modestly better job at reducing recidivism than the court system—resulting in anywhere from 7 percent to 45 percent fewer repeat arrests or convictions, depending on the study parameters. One 2015 analysis found that this effect was actually most pronounced for violent offenses and adult offenders.
Crime victims also consistently appear to be more satisfied after a restorative-justice process than after a traditional criminal one—sometimes dramatically so (in a 2017 study of its own work, Impact Justice found that 91 percent of victims said they’d recommend the process to a friend and 88 percent said the repair plan adopted by the group addressed their needs). Surveys show that while people who have survived a crime want to feel safe, many of them also prefer rehabilitation for the perpetrators, rather than long periods of incarceration. Researchers find that victims often perceive restorative dialogues to be fairer and more responsive to their needs and wishes. One 2013 study of face-to-face meetings between victims and offenders found a marked decrease in victims’ post-traumatic stress symptoms and in their desire for revenge. A multiyear randomized study in Australia found that victims of violent crime who went to court were five times more likely to believe they would be re-victimized by the offender, while those who went through a restorative process felt more secure and achieved a greater sense of closure.
Adriaan Lanni points to such findings in her argument in favor of restorative justice, but says even they fall short of the full picture. For several years, she has volunteered as a case coordinator for a Concord-based program, and has seen firsthand what happens in those conversations. “I think you lose a lot if you just look at the quantitative analysis, like, ‘Give me the recidivism number,’” she says. “It’s sort of a magical experience. I was skeptical about restorative justice until I started sitting in circles. But it’s really transformative, in a way that’s hard to measure.”
“A Much More Capacious Approach”
Lanni found her way to restorative justice bit by bit. Originally, she planned to become a labor lawyer. Both her parents were labor organizers, and she spent her Yale Law School summers working at union-side law firms and the American Civil Liberties Union. But a class on capital punishment profoundly changed her outlook on the legal system; she dove into criminal law and procedure and wrote a paper on jury sentencing, arguing that communities should have more of a say in the criminal-justice decisions that affect them. “I think you can’t really study the criminal legal system without being appalled by mass incarceration and racial disparities,” she says.
Meanwhile, she had already fallen deep into another consuming interest: ancient Athenian democracy. That’s what she had studied as a Marshall Scholar at Cambridge University prior to law school, and as a doctoral student afterward; her dissertation (and first book) addressed jury decision-making in Athens. “The Athenian jury had a much more individualized, contextualized approach,” she says. “They would take into account the impact that, for example, the punishment would have on the defendant and on the community, and on the defendant’s family.” In the American system, those things are irrelevant: “We don’t even tell the American jury what the sentence will be, except in capital cases.”
In the concept of restorative justice, all of this came together. She discovered that restorative justice, like the Athenian system, offered “a much more capacious approach” to what ought to happen after a crime. Ancient law—not only in Athens, but also in Rome and the Near East—is a subject she still teaches: “What I think is important about a class like that for lawyers,” she says, “is that it denaturalizes our system and shows us that it’s not inevitable; it’s a result of contingencies and historical choices. There are different ways of thinking about crime and punishment than what we’ve chosen.”
Lanni’s engagement with restorative justice reflects a growing tide at the Law School. Minow reports that newly admitted students now often arrive with an interest—and sometimes actual experience—in restorative work. Lecturer John Cratsley, who, like Gertner, is a retired judge, devotes a few class periods every semester to teaching the concept: “It’s an extremely valuable tool that I wish had been available to me when I was on the bench,” he says. Meanwhile, student demand for Lanni’s restorative-justice course keeps growing. At one point this past spring, there were 150 names on the waitlist.
Moral and legal philosopher Erin Kelly, Ph.D. ’95, has found herself increasingly turning her research toward restorative justice, too. A faculty member at Tufts University who was a visiting Harvard Law professor this past spring, she studies criminal law and its relationship to injustice. Her 2018 book, The Limits of Blame: Rethinking Punishment and Responsibility, critiqued the moralism that justifies harsh treatment of lawbreakers. “A lot of times, people think that individual moral accountability only makes sense within a retributive framework,” she says. “I think a lot of people naturally put together the ideas of moral accountability, blame, and punishment. And they think that if we pull them apart, then we’re not being morally serious.”
Indeed, one common critique of restorative justice is that it allows offenders to escape proper punishment. But to Kelly, the punitive approach to criminal justice—the foundational idea that perpetrators must be harmed—is what’s “difficult to defend on the basis of rational argument.” Mitigating factors in crimes, and the long history of social injustice and inequality, complicate responsibility and mean that “When you ask, ‘Who deserves punishment? And how much punishment do they deserve?’ it’s harder to pin down a convincing answer than retributivists would like us to think.” Meanwhile, the broad discretionary power of police and prosecutors muddies the notion of the legal system as a tidy instrument; in reality, it is subjective and messy: “There’s lots of room for moral contestation there.”
Conversely, she argues, restorative justice is a firmer solution than many people imagine. “Instead of offering a purportedly objective answer to the question of what should happen next after criminal wrongdoing, what’s being offered is…a procedure that’s well-organized, with each person having a role and being recognized as an equal partner in the enterprise. And then things get worked out through that procedure.” Democracy itself follows that model, Kelly says. “And there’s something attractive, especially in a pluralistic society, and a society that values liberty and autonomy, about a democratic exercise in which the most important people with regard to what has happened are present and participating in the outcome.”
Fairness, Power, and Forgiveness
Still, restorative justice is not a panacea. An emerging field, it remains a site of vast experimentation, and there are trade-offs and drawbacks, questions to be worked out. Not every case can be decided this way: with defendants who are not ready to accept responsibility, for instance, or who are wrongfully accused, or offenders who pose serious danger to themselves or others.
Fairness is a worry in cases where police or prosecutors determine who has the option of a restorative process, and in cases where the offender wants to take responsibility and make amends but the victim is not willing or emotionally ready to meet. Surrogate victims offer a possible solution, but that in turn raises the concern that offender rehabilitation will supersede victims’ needs.
The power dynamic between facilitator and participants can also be tricky, especially when disparities in race, gender, age, and class come into play. And there is sometimes a risk that participants may feel coerced: offenders, to take part, with the threat of a criminal sentence hanging over them; victims, to forgive the perpetrator. Forgiveness must never be a requirement of the process, sujatha baliga says. “Forgiveness is an individual journey.” Very often it happens, but not always. “There’s an independent good to wanting to make things right. Whether or not you receive forgiveness when you’ve caused harm is not your business.”
Coleman recalled discovering restorative justice and thinking, “Wow, the people who need it most don’t have this. I was like, ‘Damn, man, I need this more than anybody.’ ”
Perhaps the biggest concern has to do with race. On one hand, restorative practices that originated in indigenous communities have been adopted without credit or adapted in ways that sever them from their original purpose and meaning. This kind of cultural appropriation “is a huge issue in the field,” Lanni says. Also, the problems of crime and incarceration fall disproportionately on minority communities. In those places, restorative justice has a real potential to bring change, advocates say, and yet, many programs are in white, suburban neighborhoods, dealing primarily with nonviolent offenses (though some organizations, like baliga’s, do focus on violent crime and minority communities). In talking to the Harvard Law students, Coleman recalled discovering the concept of restorative justice and thinking, “Wow, the people who need it most don’t have this. I was like, ‘Damn, man, I need this more than anybody.’” He and Williams help lead The Transformational Prison Project, which brings the restorative process they experienced in Norfolk to former inmates now living on the outside ; and Coleman is on staff at Communities for Restorative Justice, the same Concord-based organization where Lanni volunteers. His role involves expanding the program’s reach into Boston’s neighborhoods of color.
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The first restorative justice circle involving a serious crime that Lanni took part in as a volunteer concerned a young man in Boston who, after smoking pot late at night with his friends, chased down a pedestrian and pointed a gun at him when the man refused to give the young assailants any money. The gun was loaded with BBs and the stick-up was meant as a prank, but the pedestrian ran away fearing for his life. The boy was arrested soon after. In the circle, Lanni says, everything came out: fear, regret, recognition, life histories and memories of trauma, and the story of what happened that night. And somewhere in those hours in the circle, that magical thing, the phenomenon Lanni can’t quite put into words and can’t capture with statistics, happened. It was the first time she’d seen it. At the end of the meeting, anger had turned to empathy; a traumatized victim felt less afraid and a young man had heard directly from the person he’d hurt—and had apologized, felt remorse, and made amends. After it was over, the offender’s mother stood up and hugged the victim. “I had walked into that room with curiosity and hope, but also with skepticism,” Lanni says. “I walked out with a firm belief in the transformative potential of restorative justice.”
Associate editor Lydialyle Gibson’s profile of Jeannie Suk Gersen, “Due Process,” appeared in the March-April issue.
Published in the print edition of the July-August 2021 issue (Volume 123, Number 6), under the headline “Justice Be Done.”