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