Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2018, Vol. 44, No. 3 | Page 37

[J]ustice is known in one way in the unchangeable truth, in another in the spirit of a just man. 23 Justice and the Constitution of the United States As art is the product of an artist, so a just state is the product of just citizens. Here in the United States, jurists and politicians of- ten claim that the Constitution is “the su- preme law of the land,” relying on those very words found in the Constitution itself: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, un- der the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Con- stitution or laws of any State to the contrary notwithstanding. 24 Yet because the authors of the Constitu- tion existed before that document existed and obviously saw themselves as men who had the authority to try to establish a just government under a just set of laws, there had to be a higher law that existed before the Constitution—the law that enabled them to strive to fashion a just system of government. What is this higher law? It is justice. It is living so as to be, fundamental- ly, in balance with others, with nature, and with whatever one envisions to be one’s highest calling. America in its vast potential beckoned its educated sons and daughters to cast off the yoke of English monarchy. The potential and the tradition were out of balance. And did they not r ecognize, in their calling to be political leaders of a new and independent people, a need to strive to be in perpetual balance with each other in civil concourse and government? 25 Our brief Constitution must be interpret- ed. Our interpretations must allow the cit- izens of our country to continue to strive to be just, to abide by the law that is in- herent in everyone, the law by which we all live, the law of balance and balancing—the law of justice. Our tripartite system of gov- ernment itself gives homage to this per- petual striving for balance. The operation of our government continually depends on the balance of power consciously exer- cised between the three branches of gov- ernment. The continual balancing of these powers exercised for the common good of the people is the appropriate work of our government—of the men and women who www.vtbar.org constitute our government, our state. Restorative Justice as Constitutional Justice Restorative justice is constitutional jus- tice because the men and women who par- ticipate in restorative justice processes are seeking justice from themselves for them- selves—as did our founding fathers. Be- cause it is devoid of coercion, restorative justice is the justice of a truly “free” peo- ple. Restorative justice is an invitation to strive to be in balance with another who one thinks one has harmed him or whom one thinks he or she has been harmed by. No one has to participate in a restorative justice process if he or she does not want to or no longer cares to for any reason. A person charged with a crime in a criminal justice system that allows for restorative justice resolutions can choose, if given the option, to allow himself or herself to be handled by justice officials according to the rules and laws of the state’s criminal, adver- sarial justice system in which resolution and punishment is imposed. There are, cogent reasons not to allow a defendant to partake of a restorative jus- tice process, for example, lack of remorse, a continuing interest in criminal enterprise and affiliations, incompetence and insani- ty. But the restorative justice option should be the first choice of the state—plan A, so to speak. Besides helping to foster virtue among its citizens (for virtue requires jus- tice and justice, virtue), it will, at the very least, undergird the fundamental lynchpin of justice that keeps our society from de- volving into a police state: innocent until proven guilty. Even if technically guilty of a crime, do not just men and women accept responsibility, not try to distance them- selves from their own deeds, and seek to make amends? For those who can participate, a restor- ative justice process allows the men and women, the victims, offenders, and their respective families, friends, and concerned community members to come together in a voluntary manner and with respect- ful attitudes to explore how all the parties have been affected by an offense, a harm or harms. 26 It allows them, moreover, to fashion a justice agreement that addresses more particularly and more suitably the in- dividual needs and capabilities of the par- ties. Unlike the probation system that levy fines that defendants are unable to pay and, thus, whom it may render perpetual victims of the state, restorative justice par- ties can work out for themselves, often with help from their families and friends and concerned community members, what jus- tice solutions will actually work. The legis- latively derived, cookie-cutter approach to justice wastes a lot of the parties’ dough, THE VERMONT BAR JOURNAL • FALL 2018 so to speak. The restorative justice ap- proach does not—it is the parties’ choice, after all, as to how they spend, utilize, and account for their resources in a restorative justice agreement. Their agreements are, ultimately, their responsibility. If a respectful attitude is not shared among the parties, then doubtless the re- storative justice process, the exploration of the harm done or the attempt to come to peace with a justice agreement, will not continue successfully. Then, whoever is deemed to have violated the law will be subject to the criminal justice system—plan B, so to speak. If a hateful, vengeful, ma- nipulative, or an overly fearful attitude ex- ists (versus an apprehensive one, which will surely be present among all the parties), then there will be recourse, again, to plan B. Certainly, the difficulty in maintaining re- spectful attitudes among parties at conflict will itself assure the continual existence of our current coercive, criminal justice sys- tem. And, of course, it is the constitutional right of every defendant to a jury trial. But this is not to say there will always be such difficulty or that certain crimes will achieve resolution when a restorative justice pro- cess option is made available to those in- volved and affected by a crime. 27 [W]ithout justice a republic can neither be governed, nor even continue to ex- ist. 22 Restorative Justice: The Hope of the Future Our criminal justice system should do what it was designed to do: hold trials. It should not sweep conflicts out of sight with plea “deals,” which can be often leveraged on the impoverished and ignorant. “[C]rim- inal justice today is for the most part a sys- tem of pleas, not a system of trials.” 28 De- lineated standards of unacceptable behav- ior and subsequent consequences for such behavior are, of course, necessary for a state to define itself as a state. A criminal system based on such standards must ex- ist but not to the exclusion of peaceable and voluntary means of resolving conflicts. The criminal justice system, as is, will also be necessary for those who desire to plead innocent to whatever charges the state brings against them. Such standards and consequences as perpetuated by the crim- inal justice system will also help motivate affected parties to resolve their conflicts on their own and to avoid getting into them. The deterrence effect of state-imposed punishments is not denied here in any way. The problems with our current crimi- nal justice system are leg ion. 29 It is not the purpose of this article to describe them or to direct the reader’s attention to them. A promotional flyer for the Center for Justice Reform at Vermont Law School declares the problems with unabashed forthright- ness: 37