How Effective is Restorative Justice When Followed by a Punitive Sentence?

When I first arrived in Wellington, everyone was discussing a (then un-named) university employee who had stolen almost $500,000 from the university through submitting invoices for a fake company that she had created and then awarded contracts. The company had a fake email address and payment information routed to her personal account.

Here is a news article about the case that was published near the beginning of my time in New Zealand.

When the case went to court, the offender (Rebekah) pleaded guilty and was offered the option to participate in a restorative justice conference with 11 of her previous co-workers from the university, the most impacted parties. I was not part of the restorative justice conference, but from what I’ve been told, it was an emotionally intense, but ultimately successful conference in which Rebekah heard how her co-workers had been impacted and expressed her deep remorse and apologized for the harms she had caused.

In order to understand this case, you need to understand how restorative justice works in New Zealand. If this case were handled by a restorative justice service provider in the United States, like the non-profit I worked with in Colorado, the restorative justice conference would culminate in a contract, outlining what Rebekah agreed to do to repair the harms to the victims, the community, her family and herself. The group would establish a deadline and specific items for Rebekah to complete. Likely, this would include re-paying the money to the university or the insurance company, doing something to improve the reputation of the university and mend the trust that had been broken among employees, and something to repair the harm that was caused to her husband and children. If she completed all of the items by the deadline, the case would be considered closed and no further sentencing would take place.

In New Zealand, restorative justice is far more integrated with the court system. Offenders first go to court where they plead guilty and then may be offered restorative justice if the case is a good fit. In New Zealand, having a criminal conviction on your record isn’t as big of a deterrent (for finding jobs, housing, accessing financial aid for education, etc.) as it is in the US, so pleading guilty doesn’t have to be avoided and is a good way to clearly assess whether an offender is taking responsibility. During the restorative justice conference, the impacts are discussed as well as what needs to happen next to move forward, however, the group is not required to agree on a formal contract stating what specifically the offender will do to repair the harms. This is because sentencing is still handled through the court rather than restoratively. As a result, the restorative justice conferences mostly focus on the emotional impacts and can be very healing. However, afterwards, offender and victim are thrust back into the adversarial court structure, where the offender sits in an isolated box and receives a punitive sentence. This integration with the court system allows New Zealand to offer restorative justice for more serious cases than restorative justice is currently regularly offered for in the US (cases including death by accident or murder, sexual assault, other violent assaults, etc.) and is a good opportunity to offer an experience of healing to more people. The number and magnitude of cases that go through restorative justice in New Zealand is very impressive and I hope something the US can emulate. However, through Rebekah’s case, I have begun to doubt how effective restorative justice can really be when the sentence outcome is still punitive.

Yesterday, the case went back to court for Rebekah to receive her sentence. Rebekah entered the court room with her family who sat down in the gallery while Rebekah went alone to the box, walled off by glass, where she would stand silently with a police officer by her side for the entire sentencing. When the judge entered, we all stood up and he took his place on an elevated platform behind a large desk. Each time an attorney would enter or leave the room, he or she would bow to the judge.

The defense attorney spoke about the remorse Rebekah had shown and her bravery in attending the restorative justice conference. He explained how Rebekah and her husband had sold their house and car, liquidizing all of their assets, and that between the money from these sales and their savings of $12,000, they would be immediately paying back close to $350,000. He shared that there was also a plan in place to pay back the remaining money through a portion of Rebekah’s pay check each month once she was able to secure a job. Rebekah had gotten two well-paying jobs since leaving the university, but in both cases, an anonymous phone call to her employer sharing the details of her offense at the university had resulted in her being fired.

The defense attorney also shared the details of Rebekah’s life leading up to the offense. She was the primary provider for her family, making 80% of the household income through her job. When the fraud began, she had just found out she was unexpectedly pregnant and worried about the impact her pregnancy and the birth of her second child would have on her ability to provide for her family. She was also struggling with un-diagnosed depression. The money she stole was spent on groceries, home renovations, a second-hand car and other household items. Rebekah continued stealing money from the university for two years before being caught. Her two children are now ages 2 and 5.

Probation had assessed that Rebekah did not present a serious risk of re-offense and the defense attorney asked the judge to please consider the negative impact on Rebekah’s two children if now, after losing their home and sense of security, they were also to lose their primary provider and the physical presence of their mother. For all of these reasons, the defense attorney requested home detention in lieu of prison.

When it came time for the judge to announce Rebekah’s sentence, he referenced the fact that Rebekah had taken responsibility through pleading guilty, had shown remorse through restorative justice, and was working to repay the insurance company that had covered the university’s losses. For each of these items, he gave a discount to her sentence. Still, after all of the discounts were tallied, Rebekah was left facing 2 years and 5 months in prison.

I watched Rebekah as she was escorted by a police officer from the box where the offender stands for sentencing through a door to the cells where she would await transport to prison. She did not have a chance to say goodbye to her parents, husband, and friends who were watching from the gallery. Outside the door of the court room, I watched her family cry and embrace each other. I wondered what she had said to her children when she left that morning. Did she say goodbye? When would they see her next? My heart broke picturing her children seeing her surrounded by the stigmatizing symbols of incarceration: the bars, the uniforms, the guards. I thought of all she would miss in the next two and a half years, the daily joys and challenges of young children. I worried about how her kids would manage financially now, how this would impact their future opportunities.

All of these thoughts that swirled through my head are further harms that will occur because of this prison sentence. These further harms are not inherent in the offense, they are a direct result of how the crime is being handled by a justice system that was formed by humans and can be changed by humans.

The word “penitentiary” comes from penance. Prison was originally a legalized and institutionalized repentance ritual that afforded offenders the opportunity to sit in solitude and reflect on their sins. It doesn’t take a deep dive into the reality of prisons today to realize that isn’t what is going on there. Prisons are crowded, sad, dangerous places that usually bring out the worst in people.

Beyond the penance argument for incarceration, there have historically been two arguments used to justify punishment. The first is the “retributivist” argument which sees punishment as good for punishment’s sake. This is the eye for an eye way of thinking. If you cause suffering, you should experience suffering. When we are experiencing hurt, this argument rings true for a lot of us. Often the first instinct is to lash back. However, again and again, the great thinkers and leaders among us have shown that imposing retributive suffering does not solve anything and only leads to spirals of violence.

The second is the consequentialist argument which asserts that punishment is only good because of its ability to create a future happier state by lowering crime and promoting safety. This can be accomplished directly by incarcerating someone who has committed a violent crime in order to incapacitate him/her and assure that he/she does not hurt anyone else. This is the one use of incarceration that I see as legitimate. Occasionally, it may be necessary to remove someone who is violently harming others from society. However, when that person is removed, it should not be to a place that necessitates violence as a means of survival (as is often the case in our current prison system), it should be to a place that is truly rehabilitative and provides the mental health, community, and educational resources necessary to work swiftly towards reintegration of the offender. If we were using our resources more effectively and not incarcerating non-violent offenders, we could provide a truly rehabilitative prison experience in non-crowded, well-resourced, and individually-responsive facilities.

The consequentialist argument also supports punishment that deters future crime through creating a fear of punishment for the offender and other people in the community. This is the argument the judge referenced in his sentence. He said he hoped that the prison sentence would discourage Rebekah and others from committing crime in the future. The issue with this argument is that studies have repeatedly shown that more harsh sentences do not lead to a decrease in crime. When a person commits a crime, they are not weighing their decision against a possible punishment outcome. In the majority of instances, the person committing the crime is thinking only about the need they are attempting to fill through the criminal behavior. This was the case for Rebekah, who thought not about possible punishment, but about financial stress and her baby on the way.

It isn’t fear of punishment that stops people from committing crimes, it is the development of empathy. It is the ability to put yourself in other peoples’ shoes and understand the impact of your actions on others. The wonderful thing is that empathy is something that can be taught and developed in people of all ages and restorative justice and restorative practices are playing an important role in that development of empathy in our communities. However, that positive impact is obstructed when the process is followed by a punitive sentence that only increases the harms. As we work towards further integration of restorative justice in the United States, this case holds an important lesson. We can’t let the restorative power of restorative justice, the focus on repairing harms rather than creating new ones, be lost through institutionalization. If a system still results in two children being left without their mother for over two years after a non-violent offense, it isn’t good enough.

Here is a news article explaining the outcome of sentencing for this case.

 

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One thought on “How Effective is Restorative Justice When Followed by a Punitive Sentence?

  1. A very interesting article Lindsey. Thank you for sharing this story. I greatly appreciate your culminating reference to empathy as the true deterrent – an important lesson for our system.

    Like

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