Restorative Justice Fund

RJF Blog

The Restorative Justice Fund is a 501(c)(3) non-profit organization incorporated in California as Fiat Justicia Ruat Caelum, Inc. (EIN: 47-5260391)

A Restorative Opportunity in 2017

(Postscript: Roof was sentenced to death January 11, 2017. While my suspicion was correct that Roof would get the death penalty for his crimes, it remains to be seen if we can learn anything about the nature of compassion and forgiveness from Roof's case. For example, USA Today ran a really interesting piece whose headline, "Why black Americans are against death for Roof," speaks volumes about how far we have to go before we can understand what happened in this case. There's a lot of interesting things at work here and that's why I was compelled to write this piece.)

Throughout December and now this first month of 2017, I've found myself following the Dylan Roof trial. You may remember that Roof was the young man who murdered nine black churchgoers at a church in South Carolina, the young man who wanted to start a race war by killing innocent African-American people while they prayed. At least at first glance, it seemed a gruesome and unforgiveable act and I doubted that he would receive much mercy in South Carolina, a state that stills executes prisoners by electric chair.

Beyond the abject horrific nature of the crime, journalists also latched onto the unusual legal proceedings: Roof wanted to represent himself at both the penalty and guilt phases of his trial, which the judge allowed, but eventually ended up reinstating his lawyers at the guilt phase for reasons that still remain unclear. However, even represented by counsel, Roof had little chance of receiving anything other than a guilty verdict from the jurors: Roof admitted committing the crime, of killing black people with a purpose, several times. It took the jury two hours to return a guilty verdict.

Now at the penalty phase, where the jury decides whether Roof will be put to death or serve a life sentence in prison, Roof is representing himself and the breathless, "will he/won't he" reporting continues despite the overwhelming evidence that, by all accounts, Roof wants to be put to death. He won't put up a fight at the sentencing phase; he will continue to spout the hate that led him to commit the crime in the first place. He does not want a lawyer to raise a mental health defense because he maintains that he is not mentally ill. He wants to make a point about why he did it.

Up until recently, I thought that reporting on the Roof's trial like a football game was a waste of my time (although I still listened to it...) because it seemed clear that he would almost certainly be sentenced to death. But then I heard that several of the family members of Roof's victims do not want him die for his crimes. And then I remembered that I actually wrote a paper in law school about so-called "volunteers" for the death penalty. And then I reconsidered how much of a shoe-in Roof is for the death penalty.

Let's start with death penalty volunteers: our system basically breaks down when a defendant actually wants to be put to death. It goes against the fundamental assumption that undergirds our system, that people do not want to be punished and will avoid committing a crime to avoid punishment. In practice, that usually means that the harder you fight against the death penalty, the higher your chances are of being put to death. But when the defendant wants to die and is effectively using the machinery of the justice system as a suicide device, then the hand wringing begins. The greatest power our government has, to take a human life, suddenly becomes problematic when confronted with the volunteer. Indeed, many of the most famous volunteers, including the Unabomber and Khalid Sheikh Mohammed, were not put to death. It is often too much for the Powers That Be to give volunteers what they want, even if by any other standard they would have been killed by the state (Update: the NYTimes did a story today about defendants who represented themselves in similar cases, seeming to volunteer for the death penalty as well. Some were executed.)

Evidently, Roof is a volunteer: he wants to make a point and he will do it with his life. And there is no doubt that what he did is ripe for the death penalty. The prosecutors in the case have made it abundantly clear that they will not pull any punches in showing the jury how cold-blooded, intentional, and merciless Roof was when he turned his weapon on nine innocent people. Yet many of the family members of the victims do not want him killed or else become as barbarous as he is. They are trying to forgive Roof in a way that seems impossible, almost naieve. This, however, is the essence of Restorative Justice, in turning away from rote punishment and vengeance as the response to the worst crimes. 

Why did Roof commit this crime? The articles that have been written about him paint him as a lonely, isolated, uneducated, immature, and highly impressionable young man. They tell a story of how Roof became radicalized on the internet and that easy access to guns allowed him to put his radical beliefs about race into action. He planned to kill as many black people as possible to start a race war and then kill himself afterward; after the massacre, he raised the gun to his head and pulled the trigger but found he was out of bullets. Our system breaks down with someone like Dylann Roof because punishment does not work. He wants to be punished. Meanwhile, the internet makes it easy to create so many more like him who have the same violent and misguided intentions. But if we can't punish someone like him, what can we do? 

This case reminds me of another horrible crime committed in Norway several years ago: Anders Breivik rowed a boat to an island that basically had a summer camp running on it and proceeded to kill 73 young people with an automatic rifle. Many begged for their lives before Breivik shot them in the head. Once he had sated his terrifying urge to kill, he simply waited for the police to arrive by boat on the island. Later, authorities found a bizarre manifesto totaling more than a thousand pages that described the resurgence of the Knights Templar to protect Europe from the rising tide of immigrants. 

Norway has no death penalty or life without parole; Breivik was sentenced to the maximum of twenty-one years in prison where he lives in a three room suite with access to a TV, internet, a Playstation, and other amenities. Nevertheless, he maintains that the conditions of his confinement are inhumane. What is really amazing though is the reaction of the families of the victims and the general populace of Norway: they are radically compassionate of Breivik, seeming to forgive him in some sense for this unimaginably horrible crime and not out of a sense of pity. It comes from a deeply rooted value that their society shares, that evil like this does not spring out of nowhere and that understanding the roots of it strengthens the fabric of their community. It is hard to describe and even harder to practice; I often think of how angry, perhaps even bloodthirsty, I would be if someone I loved was murdered in this way. 

This is the paradox that both fuels an ineffective and extremely costly justice system and shows what is possible with regard to people like Dylann Roof. To me, people who seek justice for their families by showing compassion for people like Roof, by forgiving them, by engaging with them, are truly awe-inspiring people. Indeed, this may be one of the most effective ways of stopping other Dylan Roofs from killing, by ending the cycle of violence and turning to restorative practices instead of vengeance.

Now, I am not so sure about the outcome for Dylann Roof. If anything, it gives us an opportunity to think about what an alternative response might be for someone like him. Even if Roof is sentenced to die, his case is suggestive of how transformative this shift in thinking can be and its potential to repair a harm that seems impossible to heal.

Peter Borenstein
RJFund + the Project for Integrating Spirituality, Law, and Politics

Thank you to everyone who contributed to our first #GivingTuesday campaign. We were able to reach our stretch goal of $2,000 which, combined with a generous matching grant, makes our total takeaway more than $3,000! We were a part of a record breaking Giving Tuesdaywhich saw $168 million donations go to non-profits in a single day.
 

In other exciting fundraising news, we would like to announce a new partnership with the Project for Integrating Spirituality, Law, and Politics (PISLAP), to support our work creating pre-filing diversions in Los AngelesPISLAP is a nationwide group of lawyers, law professors, and law students seeking to transform our legal culture from its current adversarial, individualist emphasis to a healing-centered and communitarian one. As you can imagine, there is a lot of overlap in our respective missionsThe PISLAP grant of $5,000 will fund important work making LA's criminal justice system more equitable, effective, and cost-efficient. Learn more about PISLAP here
 

Peter Borenstein
Restorative Justice is Storytelling

For me, this election has shown how powerful storytelling can be, especially when we are telling the story to ourselves and desperate to believe. Media, social or otherwise, makes it easy to create an echo chamber of stories, curated to tell us exactly what we want hear. It's hard to overstate how dangerous it is to privilege our own stories over others, particularly as we struggle to understand puzzling (to us) behavior. Meanwhile, it is extremely difficult to engage folks from other backgrounds and viewpoints, to grow compassion for them, to have the honor of hearing their stories. It's a learning that I'm taking away as we move into this next, strange chapter for our country.

On that note, I think it's also important to remember how powerful the narrative of our criminal justice system is and how it suffers from the same problems. For example, California voters passed on another chance to repeal the death penalty and instead voted to speed it up, which follows from a story that we've been telling ourselves for a long time: that "good guys" put away "bad guys," that crimes must be responded to with punishment, that vengeance is an effective policy choice.

Restorative Justice is powerful because it creates the space for many stories to be told. Gathering everyone together who was affected by wrongdoing, even the wrongdoer herself, empowers everyone to speak, to listen, to learn, to heal. I think we need some of that right now. So, I'm republishing a piece I wrote last year, "Restorative Justice is Storytelling," which calls for an expanded definition of Restorative Justice that incorporates the importance of storytelling. Read it below:

Restorative Justice is Storytelling

(Published 12/2015 on medium.com)

As a relatively new movement in American criminal justice reform, Restorative Justice (RJ) is still being shaped and defined. One can ask ten different practitioners what RJ is and they will respond with ten different answers. However, a common thread among these different conceptions of RJ is that it’s more victim-centered than traditional criminal justice; many believe that whatever the restorative process looks like (and it can look like a lot of different things), it includes the victim of the crime in a way that is distinctive and important to the process as a whole.

Admittedly, the most compelling part of RJ in practice is the moment when a victim (or a family member of a victim) of violent crime meets the offender in dialogue. These encounters must be guided by a skilled facilitator and can be difficult but also healing. They show that there is a need that is not being met by the traditional criminal justice system: many people affected by crime want to talk about it, and they often want to talk about it with others who were involved, such as the offender herself, their family, and community members.

But what about crimes that do not have victims, or crimes against large businesses or retailers where the victim is not any one person but the organization itself? If the common thread of RJ is its victim-centeredness then can a restorative process be created that can deal with victimless crimes? Does it become less restorative just by virtue of the lack of a victim?

In the City of Los Angeles, low-level crimes such as petty theft and vandalism are eligible for pre-filing diversion, an alternate method of dealing with low-level adult crime that involves the community instead of courts and lawyers. The Los Angeles City Attorney administers pre-filing diversion after eligible offenders have been arrested or cited but before the decision to file criminal charges has been made. Once they’ve been diverted, offenders meet with members of the community who live in the area where the crime was committed to talk about why they did it, what the effects of it were, and how to move forward in a positive way.

Given the common definition of RJ described above, a petty theft against a big box retailer such as Walmart could only be handled restoratively if the victim (i.e. someone from Walmart, a manager or loss prevention associate) was involved. And yet, even if there is no victim or the victim is not available, we find that the diverted person still wants to talk about her crime, wants to express her embarrassment at being detained for several hours by Walmart’s loss prevention personnel, wants to describe the difficult divorce she is going through, the health problems she has, her interest in getting a nursing license, how she likes to write, how she is proud of her children and would never want them to go through this.

We find that people want to listen too. The petty theft happened somewhere, in a community of people who also shop at Walmart. They may have seen the person who was diverted in the parking lot getting handcuffed or they may have experienced a price increase because of frequent thefts or they may have decided not to shop at that Walmart because of its reputation as an easy target for theft. Despite not being direct victims, people in the community are nevertheless affected by petty theft at the local Walmart. They want to know why it happens and to make sure that it never happens again.

Restorative practices create a space for people who have been affected by crime to meet together and talk about their experiences. This itself is restorative, healing, and ultimately valuable for everyone involved. Hearing the stories of people who have a relationship with a criminal act broadens the awareness of all involved, allows them greater perspective into the hows and whys of crime. Most importantly, storytelling grows compassion among individuals who find themselves connected by wrongdoing.

One reason why the victim may be so important to RJ is because their stories are often the hardest to hear, the most emotionally resonant, and the most easily silenced. The victim does not really have a place in our traditional criminal justice system because their needs are quickly replaced by the needs of the State who, once criminal litigation begins, becomes the official victim. The actual victim of the crime is relegated to the sidelines in a legal sleight of hand, even though they are the direct recipient of the wrongdoing. This often makes closure for victims very hard as they play little to no role in the “justice” that is served, nor do they have much say in what exactly “justice” might look like in their situation. Our laws dictate what justice is, not the needs or wishes of the victim of the crime. Understanding this, it is important to create an alternative space where the victim feels safe to express their needs and see them relate to the ultimate outcome.

The same storytelling process is constructive for every party to wrongdoing, including the person who committed the crime. Our criminal justice system is equally as insensitive to the reasons why the crime was committed as it is to the effects of that crime on people. Our adversarial process is mostly concerned with determining guilt or innocence and it excels as a system of fact-finding for that purpose. Only rarely, and usually only after a defendant has been convicted, does the life story of the defendant factor into the process for sentencing and even then, the particular details have little bearing on sentences, which are usually established by statute. In the case of low-level crimes, personal details of the defendant are mostly ignored unless they bear on whether they will be able to pay court fines and fees.

In our traditional criminal justice system, one story matters: the story of whether the defendant committed the crime or not. All other stories are collateral, if not disregarded. For this reason, all those involved in the wrongdoing -- victim, defendant, family, community  -- often have many unresolved feelings as the case comes to an end. The criminal justice system has done its job but, unfortunately, that rarely meets the needs of anyone else.

Restorative Justice is restorative precisely because it seeks to bring closure and balance to all those affected by crime in a way that the criminal justice system does not even begin to contemplate. The power of storytelling among the victim, offender, and others establishes compassion to an extent where everyone can move forward and begin to heal. Thinking of RJ as primarily victim-centered does not give this truly innovative theory of justice the credit it deserves: with the help of a skilled facilitator, RJ stakes out a safe place for people to meet on their own terms to discuss a traumatic and painful event and to repair harm caused to bodies, minds, property, and relationships. In order to do this, a victim’s participation is sufficient but not necessary. What is necessary is creating a space in which everyone feels free to tell their stories. Only through telling and listening can we begin to heal.

Peter Borenstein
Listening to Lifers: Arbbie

Our newest project is a partnership with The Francisco Homes (TFH) to provide full service legal representation to lifers. While it has been eye opening to learn how vulnerable many of the men are as they return to society, what has struck me most are the incredible stories they have. Their experiences before, during, and after incarceration are rare insights into how they ended up in prison, what sustained them while in custody, and what empowers them upon reentry. Over the next several weeks we'll be sharing some of these stories with you in a series we're calling Listening to Lifers. 

The first story in our series comes from our client and TFH resident, Arbbie:

Arbbie was originally sentenced to 19 years to life in prison. That means he could be eligible for parole after serving the base term of nineteen years. But for a lifer, nothing is guaranteed; he could also spend the rest of his life in prison. He was convicted and sentenced during a harsh period when "tough on crime" became the vanguard. Particularly for men who committed any degree of murder, there was little hope of ever being released if you were convicted during the early 80s. 

Arbbie spent 36 years in prison and was just paroled last year. He was convicted of second-degree murder in 1979. At the time, he was running a gambling operation out of his house in Long Beach and was expecting his first child. To protect his business and keep the peace, he kept a baseball bat around just in case there was trouble.

One night, he heard a scuffle outside: his pregnant girlfriend was arguing with a woman on the front lawn. Another man, someone who had been at the gambling spot earlier in the day, got involved and started threatening Arbbie's girlfriend. Arbbie grabbed his baseball bat and went outside to make sure that the situation didn't escalate. But it did. Arbbie ended up slamming the man in the head with the bat, putting him into a coma from which he would never wake up. 

Arbbie is the first one to admit that he was a criminal back then. He started when he was fourteen, engaging in small-time theft and robberies, eventually moving on to more elaborate confidence schemes. He was a pool shark, a hustler, a "flim-flam man," but he was never violent. His commitment offense was the first and last time that he ever laid hands on someone.

Nevertheless, Arbbie served his time with a dignity and determination that even his fellow inmates recognized. He won awards for his performance in prison work placements; he got clean and sober; in the thirty-six years he eventually served, he was only written up once, for not making his bed; he came to grips with his crime, working through it in support groups and taking responsibility for his actions and their consequences. Yes despite this progression, Arbbie was deemed unsuitable for release by the Parole Board eleven times

For a lifer who was incarcerated in the 80s, going before the Parole Board and being found unsuitable a dozen or more times over the decades is not unusual. What is unusual is that Arbbie was found suitable three times, in 2003, 2011, and in 2015, yet was only finally released in 2015 due to his designation as an elderly prisoner.

Can you imagine? Finally being told by the authorities that you are to be released, only to have the rug pulled out from under you by the governor? Twice? 

Some courts have ruled that what happened to Arbbie amounts to cruel and unusual punishment. Through our partnership with The Francisco Homes, we have begun litigating on Arbbie's behalf, seeking compensation for the way he was treated over decades of imprisonment. By providing full service legal representation to Arbbie, we hope to create an environment where he can thrive as he transitions back to society so that he can provide for himself, stay out of trouble, and enjoy life as a free man.

Peter Borenstein
Announcing the Restorative Justice Fund!

We are proud to announce the creation of the Restorative Justice Fund, a justice reform incubator whose mission is to identify, develop, and scale restorative programs that are low-cost and high-impact for the benefit of every criminal justice stakeholder - judges, prosecutors, communities, local government, and the person who committed the crime.

The Restorative Justice Fund invests in restorative projects that generate radically positive outcomes for all justice stakeholders and cause radically high returns to flow to the most vulnerable people in the US. We've developed a strategy that takes cues from the venture community to showcase the return on investment that Restorative Justice can have. We hope by telling the stories of our programs and being explicit about their value, we can incentivize investors to take notice of the once-in-a-generation opportunities that Restorative Justice presents to make our justice system effective, cost-efficient, and equitable.

Our newest project is a partnership with The Francisco Homes (TFH), one of the largest transitional housing facilities for lifers in California. We've begun developing the TFH Legal Clinic to deliver full-service legal representation for lifers, focusing on litigating winnable cases that the men of TFH bring to our attention. By providing the tools they need to vindicate their rights in court, we hope to promote our clients' ongoing and long-term success as they reenter society. Learn more here

Let Justice Be Done!

Peter Borenstein