By Molly DeCarli
Federal Judge Michael Aloi of the Northern District in West Virginia remembers when he was presiding over the trial of a woman who had assisted in robbing her friend’s house. She had reached a point in her addiction where she would hurt those she loved. When it came time for her to speak in the trial, Aloi allowed her to talk to the older woman, the friend she betrayed.
The younger woman was facing time in jail, but she still apologized for her crime and asked for forgiveness. The friend stood up and said to Aloi, “I was thinking I was going to come here today to ask you to put her in jail and put her away as long as you could. But I listened to her. I believe her. I want her to know I forgive her and still love her.”
Aloi said he put the young lady on probation instead of incarcerating her. He said it was an example of restorative justice because the young girl had betrayed the trust of someone who had cared for her, and Aloi facilitated dialogue that would lead to healing.
Advocates for justice reform in West Virginia and across the country are working to implement a more formal process of restorative justice to reach outcomes like this one. Programs that introduce restorative justice to an offender and victims create an environment for mediation that results in restitution rather than incarceration. The end goal is the repairing of community and relationships like the one repaired in Aloi’s court. In a more formal process, offenders would be asked to meet with victims and a mediator, and take action to repair harm caused by the crime, like cleaning up vandalism.
Larry Kump, R-Berkeley County, was one of four sponsors of legislation to amend and re-enact language in West Virginia Code about restorative justice programs for juveniles in West Virginia in the 2020 legislative session. The bill passed in the House and did not advance to a vote in the Senate, but restorative justice as a practice is gaining ground in schools, churches and other communities in the state.
For Kump, the bill was intended to reduce the incarcerated juvenile population. It would have re-emphasized the importance of giving juvenile offenders a community-based program to help them consider the motives behind their non-violent crimes and help them understand the harm they caused. The bill called for facilitated communication between the victims, offenders and others affected in the community with the end goal of the offender repairing the damage. The bill also stipulated that juveniles who successfully completed their restorative justice program could have their cases dismissed.
“Let’s give them opportunities to assume more responsibility for what they did and to restore the damage they did,” Kump said. He explained that restorative justice programs are a more effective way of dealing with juveniles because it keeps them out of costly detention facilities and prisons. He said it also allows young people to become productive taxpayers in the community without a criminal record holding them back.
“Imprisonment is the worst possible way to take care of problems in society. It is absolutely the worst,” Kump said.
Kump said he will continue to support the bill in the 2021 legislative session, and advocates need to be persistent about bringing restorative justice to the attention of legislators.
Public schools in Hancock and Calhoun County have implemented programs to train and encourage teachers to use restorative justice programs since 2017. Brenda Waugh, an attorney with a Masters Degree in Conflict Resolution, brought a two-day program to Hancock and Calhoun County public school teachers to demonstrate applicable practices of restorative justice.
After the program, Waugh said, “One of the situations that impressed me most involved two parents who were drawn into a conflict outside of school, but had heard about the restorative circles and asked the school to help them work it out. The Calhoun teachers, administrators, and counselors had experiences with students who experienced a significant transformation in accepting responsibility for their wrongdoing during restorative justice processes.”
In addition to juvenile cases, restorative justice is used in adult communities and facilities. A day report center in Cabell County uses restorative justice principles to help offenders re-enter the community by providing structure and guidance, as defined in their program. But without support from the state and its communities, restorative justice programs can not succeed.
James Nolan, a sociology professor at West Virginia University with a background in law enforcement with the police and the F.B.I., said restorative justice programs are built to include more than the victim and the offender.
“If somebody commits a crime and you bring them to the table, you may have 15 to 20 people from the community—victims, offenders, the family—all talking about the impact that this crime had on them. So it’s not just about the victim and the offender, it’s about the extended community,” Nolan said.
One of the challenges of implementing restorative justice practices is that they are relational. True restorative justice can’t be mandated like a sentence at a trial.
Aloi said that the difficulty with restorative justice is that the court system can not force individuals to be sorry for their actions and to make things right. “As a judge, I can’t say I’m going to order you to restore your relationship. All I can do is hopefully create an atmosphere where it can happen and encourage it,” Aloi said.
To encourage that environment in his courtroom, Aloi explained that he typically asks questions to make the defendants think about the consequences of their actions and what they could do to make it right. But he notes that the court system was not built to deal with underlying issues in someone’s life.
“If you grade the criminal justice system in terms of locking people up, it would get an A plus. But measure it in terms of healing and restoration – If there’s anything below failing, I would give it that,” Aloi said.
Young people who have been to detention facilities are more likely to go to prison when they are older. For some states and organizations, that fact has been the motivation to implement formal restorative justice programs in their communities.
Make it Right in San Francisco, California is a restorative justice program that focuses on helping youths with criminal charges. The program uses community-based, facilitated dialogue to help the young people and community come to an agreement that will make amends, repair damage in concrete ways and address root causes for the crime they committed. The youth has six months to complete the agreement with help from a case-manager. A young person is offered a chance to participate in the program instead of being incarcerated, and their case is not prosecuted if they complete the agreement.
San Francisco’s District Attorney reports that because of programs like Make it Right, San Francisco has seen a significant decline in the number of young people entering juvenile facilities. Over a span of 17 years, from 1999-2016, San Francisco saw a 76% decline in referrals of young people to the juvenile justice system. The option to complete a restorative justice program has kept young people out of detention facilities.
In order to bring formal restorative justice programs into West Virginia, Aloi said the state needs to be educated on the value of the programs, starting with judges, lawyers, prosecutors, and law students. Kump said the restorative justice bill also needs to be supported in legislation, and advocates need to be persistent about bringing it to the table in the future.