by Jan Peter Dembinski , Esq .
The Promise of Restorative Justice
Introduction
Restorative Justice can be defined as an approach toward achieving justice that , to the best extent possible , involves all the stakeholders involved in a crime to address the harms , needs , and obligations arising from the crime , by putting right the wrongs and enabling healing to the greatest extent possible . The 3 pillars of RJ are harms , needs , and obligations . At its core , RJ is about “ putting right wrongs and harms ” grounded in “ respect for all ,” which stems from an acknowledgment of interconnectedness but also diversity ; this is done by focusing on harms and needs , addressing obligations , involving all stakeholders , and by using collaborative , inclusive processes . RJ is not a specific program , but through relying on the guiding questions and signposts of RJ , we shift the question from “ What does the offender deserve ?” to “ What are the harms , needs , and obligations of a crime ? Who needs to be involved ? How do we address these and the underlying causes ?” 1
Can restorative justice be merged with criminal justice ? Moreover , can the traditional , adversarial process of criminal justice be merged with the voluntary , nonadversarial processes of restorative justice into a seamless , effective system of justice within our state ? Optimistically , I believe it can be done if the judges , prosecutors , and defense attorneys — those in charge of our criminal justice system — recognize that justice accepted and submitted to voluntarily is always truer justice than justice which is imposed through fine or force , justice which is resented and resisted . The promise of restorative justice is essentially the former . But our current criminal justice depends on the latter . The first form of justice , restorative justice , sustains and nurtures law-abiding and just citizens — and all who are willing to become such . The second form of justice , through fine or force , if bereft of the option of restorative justice resolutions , sustains and nurtures a sense of criminality and leads to a resentful class of citizens as surely as it designates anyone a “ criminal .”
As contrary as these forms of justice appear to be , I am optimistic they can be merged — or forged — into a coherent system of justice because , in a sense , they already exist in the ideal of justice , justice with a capital “ J ”. 2 What remains is to iron out the wrinkles within our systems of justice to allow those citizens who have run afoul of the laws of the state , those who have committed recognizable societal harms , to work out with those they have harmed how and when they are to make amends — to work out , in short , how they are to do justice . But the work of ironing out of the folds to allow the errant to make amends without the state imposing a predetermined punishment or range of punishments will inevitably be perpetual . As every resolution is , in essence , only a “ resolution ,” every justice decision will create the need for another justice solution , and every tweak of the justice “ system ” will inevitably require later tweaks as society evolves and changes . What is important for the criminal justice system ’ s well-being , is for its officials to recognize the ideal and to attempt to align justice decisions with the ideal . In other words , to do as one college motto urges : “ Climb high . Climb far . Your goal , the sky . Your aim , the star .” 3
What then is the justice ideal our criminal justice officials will “ aim ” for , the justice that beckons to be spelled with a capital “ J ”? It is the justice of balance . Pure justice is pure balance . We see it reflected in the scales of justice that the iconic Goddess of Justice keeps raised above her head . We see it in scientific laws that articulate perfect balance . In this article I will lay out my reasons for my faith and hope in a system of criminal justice with restorative justice as both its foundation and as its highest aspiration — as the means of achieving the truest balance among parties in conflict . While this article will not lay out a concrete plan for the integration of our current criminal justice system with restorative justice , it will attempt to lay down the cornerstone for such a system .
Restorative Justice as the Cornerstone
In the simplest terms , this cornerstone is the recognition that restorative justice is true justice . Although the adversarial criminal justice system , and restorative justice processes both depend upon a recognition of balance and balancing as the goal and means of resolution , the former tries to achieve balance between the evidence and the prescribed applicable law , whereas the latter attempts to allow the parties in conflict themselves to arrive at justice resolutions . Given these fundamental differences , the cornerstone recognition is that restorative justice is justice more fundamentally aligned with human freedom and dignity in so far as it requires a voluntary search for justice among the parties most directly impacted by the harm or the “ crime ” at the root of their conflict . 4 Such a search is taken from the parties when third party professionals adopt the parties ’ conflict as their own “ work ” and then dictate outcomes to the parties . 5 But how can a voluntary search for justice be such a cornerstone for a justice system ?
Justice as Balance
To answer that question let us consider justice as balance . If justice is balance , we can infer balance as being absolute . But can such a thing as absolute balance ever be recognized , let alone inferred ? And can there ever be true justice , let alone absolute justice ? To the extent man has perceived absolute balance in scientific laws , we can infer that absolute balance exists — and exists for every man , woman , and child , no matter what distinctions exist between them .
An unending , infinite vision of absolute balance exists within the Pythagorean Theorem ( the square of each side of a right triangle added together equals the square of the hypotenuse , A 2 + B 2 = C 2 ). No matter how many variations of right triangles one cares to imagine , the Theorem holds true for each one . A vision of absolute or perfect balance exists , as well , in scientific laws that articulate universal truths , such as E = MC 2 and , with respect to physical activity , “ for every action there is an equal and opposite reaction .” The latter is true for all actions — every sort , size , and shape . The equal sign (=) denotes perfect balance . All our mathematics depend upon the equal sign and upon the conception of the existence of perfect balance . So , too , if we infer absolute balance exists then we can infer absolute justice exists for each and every one . But can we ever know , without any doubt , what it is ?
Justice as Balancing
For any person who exists in time and space in which change is constant , it is absurd to think we can know absolute or perfect balance other than its shadow in an abstraction , such as the Pythagorean Theorem , and then infer its existence . So , while justice may be balance and we can infer the existence of absolute balance and , thus , infer the existence of absolute justice , justice manifests in our lives as the effort of balancing in light of our conception ( s ) of balance . Justice is the balancing of oneself with whatever one feels one needs to become or do to be in balance . If one has au-
34 THE VERMONT BAR JOURNAL • FALL 2018 www . vtbar . org