RESTORATIVE JUSTICE: WHAT IS IT? WHO IS IT FOR? CAN IT WORK IN OKLAHOMA?
“Our traditional justice system asks: what law was broken? Who broke it? What is the punishment for breaking that law?
Restorative justice asks: who was harmed? What are the needs or obligations or responsibilities of those affected by the harm? How do all affected by the harm come together to address those needs and obligations? How does the harm get healed?”– Fania Davis, founder of Restorative Justice for Oakland Youth
What is it?
The term “restorative justice” has many meanings and applications. Mainly, it is a framework used to reconsider the ways our criminal justice system obtains justice. Where our criminal legal system seeks to redress wrongs for violation of the law, restorative justice seeks to heal harm to relationships, victims, offenders, and society as a whole.
When thinking about our criminal legal system philosophically, we can see that it answers a harm (a crime) with a harm (punishing/imprisoning). These cycles of harm and punishment have far-reaching ripples that further harm the community (that person can no longer work or contribute in positive ways), ultimately harms the victim further because the offender cannot pay restitution or make amends when they are incarcerated, and harms the offender’s family (children lose a parent, a spouse loses a partner). Our current system is what we call “retributive,” which means it is meant to answer wrong-doing with punishment—an eye for an eye. Our system seeks retribution under the guise of justice—this is not a design flaw, it is the design.
Restorative justice seeks to answer harm with dialogue that ultimately can transform the harmful interaction (the crime) into a healing interaction for all parties. This process can look different depending on the harm caused and the victims’ wishes. Restorative justice can function in many aspects of society from educational spaces, to personal relationships, to criminal legal spaces. This is one of the reasons it is so nebulous and hard to understand.
The concept of restorative justice has its roots in tribal peacemaking rituals and ceremonies. While employing restorative justice practices is innovative in the western criminal justice system, these concepts are deeply rooted in native communities and they are not new. These concepts have been alive and working in tribal communities for centuries. If the state of Oklahoma does anything with restorative justice, there should be tribal voices leading the way – these concepts originated with tribes, and any implementation of the practices should occur with tribal guidance and input.
Who is it for?
In the criminal legal context, restorative justice is usually used in reference to some type of alternative court, alternative sentencing, or diversion program. Many states including Oklahoma have implemented restorative justice programs at the county level for juvenile offenders, or for low-level felony offenders. Many of these programs have restrictions on the type of felony committed (no sex offenses, no domestic violence offenses, and no violent offenses, for example).
Currently, there are diversion programs focused on substance abuse (drug court), and mental health issues (mental health court). There are also deferred and suspended sentences that keep people out of prison for a prescribed time frame unless the individual gets in trouble again. But Oklahoma’s system does not have any program centered on the true principles of restorative justice.
A restorative justice program in the criminal legal space usually follows this path: if an offender is eligible for the particular program, the DA must obtain consent from the victim of the crime. If the victim says no, there can be no restorative justice because it depends on all parties participating equally.
If the victim consents to participate, then the offender enters into a type of mediation conversation. Everything must be held confidential, and cannot be used against the offender in court. The offender speaks with community volunteers are specifically chosen and trained to take this person through a restorative justice conversation. The goals are to determine what each party truly needs to be “made whole.” Sometimes this includes an explanation, an apology, or it can involve financial restitution. The goal is to help both parties understand what happened, what led up to the infraction, and what can be done to prevent it in the future.
Often times the victim walks away feeling more understanding of the role crime played in the life of the offender. The offender gains an understanding of the harm caused and is given tools to prevent causing future harm. The offender signs an agreement to follow through with their restorative justice promises (counseling, payments, repairs, etc.). No restorative justice agreement is alike because they are based on what the offender and the victim need to make things right. If the offender completes the agreement, then they avoid traditional prosecution/prison. If the agreement is not completed, then the offender may still be subject to prosecution, but nothing from the restorative justice process may be used against them in court or during plea-bargaining.
Many restorative justice programs develop through which victims get to participate in the process. If the program is survivor driven, then those who were victims of a criminal experience can elect to go through the restorative justice process, regardless of the type of crime (there may be some crimes that would be prohibited for public policy reasons). This model allows the broadest application and is the most revolutionary, as there is really no place in the criminal legal system currently that is survivor-led.
If it is District Attorney (DA) led, then the DA ultimately makes decisions about who is eligible for restorative justice as an alternative to sentencing. This model is tied to a prosecution or to a diversion program, and is the most prevalent in current application in the criminal justice system.
If it’s led by the judiciary, then it is up to the court which cases would be eligible for restorative justice and how the cases flow through the system.
Any of the above approaches have different outcomes and different inputs. The one our system needs most, yet has the least experience with, is a survivor-led movement in which survivors determine the terms and process of their own healing.
Can it Work in Oklahoma?
Ultimately the answer to this is yes. This type of program uniquely fits Oklahoma because of our deep roots in faith and redemption. The real question is which of the above models would work best and be the most impactful in Oklahoma? There was an interim study in 2020 conducted by State Representative Tammy West on Restorative Justice. District Attorney Jason Hicks spoke about bringing a restorative justice pilot program to Oklahoma. His version would be the DA-led version above. The DA would determine which felony types could qualify for the program, and could decide which offenders (if any) could receive this type of justice alternative.
Any restorative justice program adopted by Oklahoma should maintain the confidentiality requirements, as these are crucial for maintaining trust and ethics in the program. Any program should train and prepare volunteers that reflect the community where the offender is from, ensuring that at least some of the volunteers “look” like the offender.
Before we decide to bring a restorative justice pilot to Oklahoma, we should determine who needs to lead the charge. If we trust survivors to be the masters of their own destinies, then we should trust them to own and construct restorative justice that truly reflects healing potential. Survivors have been talked down to enough by the criminal legal system—if we’re bringing a solution meant to heal them, their voices should be at the forefront of that solution.
Resources on Restorative Justice:
Neighborhood Courts at Yolo County (program that Oklahoma DA’s have discussed piloting)