Forgiveness and Restorative Justice in Vermont

What is forgiveness? Though we may disagree about the particulars, I think we have all had experiences in which we are forgiven by others, and experiences in which we forgive others. Suppose, for example, I bump into you as we pass each other on the street. It’s not unlikely that I’ll say something like, “I’m sorry,” and that you will respond with something like “That’s okay,” or “Don’t mention it.”

Or take another example from everyday life. Suppose in talking with a friend, you unintentionally say something that insults him or her, but, for whatever reason, you don’t realize you have been insulting, and your friend doesn’t say anything about being upset. What’s likely to happen when you learn later from a third person that your friend was insulted? It’s not at all unlikely that you’ll search out your friend to apologize for the insult, even to say “Can you forgive me?” and it’s possible, though not certain, that your friend will say “Sure, that’s okay.”

In both of these everyday occurrences, one person has “wronged” another, and the person who has been wronged is said to have engaged in an act of forgiveness. So, forgiveness could be described as one possible response to being wronged—here, being bumped or being insulted—a response which seems meant to resolve all or some of the tension created by the wrongdoing. Of course, some wrongdoing is much more serious. Everyday bumpings and insults might be resolved frequently by a “Sorry”—“That’s okay” exchange, but physical assault and slander usually are not. More serious wrongdoing is defined as illegal, and it is the state which responds through its criminal justice system. The “justice” that characterizes the criminal justice system is most accurately described as “retributive.” That is, it involves state administered punishment, even if at times that punishment is combined with attempts at “rehabilitation.”

Due in large part to widespread public dissatisfaction with the criminal justice system and retributive justice, a variety of different practices have begun to emerge—some ancient practices rediscovered or transported, some new ones. These new practices focus directly on the three main social actors in wrongdoing: wrongdoers, victims, and communities. If they were going to re-enter society after being punished (usually in prison), wrongdoers needed to re-enter in a way that made them less likely to offend. If they were to survive the physical, emotional, economic, and social harm they suffered, victims needed to be recognized, heard, and responded to. And if communities were to be more, rather than, less safe following offenses, they needed to devise practices which responded to the harms done and successfully re-integrated the offenders and victims directly involved in that harm.

Practices designed to respond to such needs have emerged—or re-emerged—over the past 20 to 30 years. They include victim/offender mediation and reconciliation programs, family group and community conferences, reintegrative shaming projects and experiments, circles (including but not limited to sentencing circles), and national and international level “commissions”of inquiry aimed at truth, justice, and reconciliation, the most widely known being the South African Truth and Reconciliation Commission.

Many of these practices are based not on retributive justice, but on a different conception of justice: “restorative justice.” In a program based on restorative justice, criminal wrongdoers are asked to acknowledge the harm their actions have caused, and to repair the damage. Those who have been harmed, and other members of the community in which the act occurred, meet directly with the wrongdoer, describe the harm she or he has caused, and develop a plan to be carried out by the wrongdoer to repair the harm. Completing the plan “repairs” the harm done to the victim and the community to the extent possible, and reintegrates the wrongdoer into the community which has been harmed.

“Forgiveness” and “restorative justice” are not the same thing, but they have several important similarities. First, they focus on responses to wrongdoing and wrongdoers. Second, though they don’t necessarily eliminate the possibility of punishment, they emphasize the repairing of harm as the goal of such responses. Third, they require the wrongdoers be accountable for the harm they have caused, by acknowledging that they caused it, and that they bear responsibility for repairing the harm they have caused. And finally, they bring those who have been harmed into the process of accountability and repair, and focus attention on their needs.

Restorative justice programs emphasize the reintegration of the wrongdoer into the community. Though they do not often employ the concept of forgiveness, they are based on the belief that, once the wrongdoer has accepted responsibility and repaired the harm done to the extent possible, reintegration will occur only if there is acknowledgment, by the victim and the community, of the responsibility accepted and the repair achieved. They are also based on the belief that the participation of the victim—describing the harm caused, and receiving an explanation of why it occurred—will create the circumstances in which the victim can, if she or he chooses to, forgive the wrongdoer. That forgiveness, if it does occur, is seen most importantly as a contribution to both the victim’s and the wrongdoer’s well-being.

In 1995, a program based on the idea of restorative justice was introduced in Vermont. Called “Reparative Probation,” it brings a group of local citizens together to meet with offenders convicted of misdemeanors and minor felonies (for example, Driving While Intoxicated, Driving With License Suspended, simple assault, welfare fraud, shoplifting, supplying alcohol to minors, etc.) who are recommended by the Vermont District Court. As part of their probation, the offenders meet with the Board to discuss the impact of their offense, to construct a plan for restoration to victims and the community (which may include apologies, essays, community service with local non-profit agencies, and additional discussions with the Board), and to help design a plan to avoid re-offense. There are a total of 62 Boards in 30 towns around Vermont, and I have been a member of the Bennington County Reparative Board for four years.

Prior to meeting with each offender, the Board receives a copy of the court order and all relevant paperwork, at times including a victim impact statement. At the meeting, a member of the Board explains the goals of the Program, and then invites the offender and the victim to describe what happened, and the impact it has had on him or her, on friends and family, and on the community at large. Members of the Board ask questions, and the offender and victim are encouraged to do so as well. After a discussion which usually lasts 30 to 45 minutes (sometimes the offender remains during the discussion; sometimes she or he is asked to wait outside while the Board has a discussion), the offender is asked to sign an agreement to complete any tasks assigned by the Board. Completion of these tasks within 90 days is made a condition of completing probation.

How effective has the Reparative Probation program been? By all accounts, it has been very successful. It has won an important Innovations in American Government award sponsored by the Ford Foundation and Harvard University. It has saved citizens of the state money, perhaps as much as the cost of three dozen full-time workers (assuming 360 reparative board members, all volunteers, put in an estimated four hours a week). Rates of participation in the Program by victims have been disappointingly low, but follow up studies of those victims who have participated, and of the offenders and Board members who have participated, demonstrate greater accountability, greater understanding of the harm caused to victims and communities by wrongdoing, increased repair of the harm done, and greater success in reintegrating offenders into the community.

Another important program based on restorative justice is the Small Claims Mediation Project. Mediation offers the opportunity for people engaged in a conflict or dispute to resolve their differences with the assistance of a neutral, third party. Mediators can assist people to clarify their concerns, explore their interests in solving problems, and evaluate possible solutions to them. The Project has provided free mediation services to all disputants involved in small claims hearings in Bennington County since it began in May, 1996. Through December, 1998, disputants in 163 cases attempted to resolve their dispute with the assistance of one or more of the Project’s mediators. In the 153 cases for which reliable information is available, 76 were successfully mediated, a success rate of 49.7%. In addition, whether their disputes were settled by mediation or not, disputants reported that they were satisfied with the outcome of the session, and said that the mediator was “impartial” and gave both parties “an equal opportunity to explain our sides of the dispute” Finally, 88% said they would recommend mediation to others.

Individuals and communities respond to wrongdoing and injustice in different ways. It seems important to examine our current methods of responding carefully, and to ask whether they serve the goals we want them to serve. What goals are most important? If wrongdoing and injustice cause harm, and if one important goal of our responses is to repair the harm that has been caused, to victims, communities, and even to wrongdoers, the effectiveness of responses based on restorative justice, such as Vermont’s Reparative Probation Program and the Small Claims Mediation Project, suggest promising alternatives to responses based on retributive justice.

At the same time, one must consider the relationship between the types of situations and practices discussed so far—where an individual breaks a law and harms victims and the community—and larger structures. Restorative justice and practices based on it, such as Vermont’s reparative probation and the Small Claims Mediation Project, cannot address, much less resolve deep structural injustices that cause problems like hunger. What should be demanded, at the very least, is that restorative justice not make such structural injustices worse.

Is that possible? Faced with offenders who suffer from structural injustice, is it possible to address their offense in responsible ways—restoring the victim and reinforcing the moral authority of the law violated—as well as do so in the context of a deliberative dialogue which “takes account of underlying injustices?” This is a difficult task.

One day the Bennington Reparative Board met with a mother of three children who had committed welfare fraud. The judge in District Court had ordered her to pay restitution and a fine, and to meet with the Board to talk about what she had done. She admitted to us immediately that she had made false reports to increase the benefits she was receiving from the state. We asked her why, and she said that otherwise she could not have afforded some of the expensive drugs necessary for one of her children who had a chronic illness. Then she looked directly at us and asked, “What would you have done?” Each of us (privately) had two immediate responses: “I certainly wouldn’t have broken the law,” and “I would do anything to care for my sick child.” And each of us realized that, to some extent, these were contradictory responses.

Would we break the law to care for one of our children? That is a deeply difficult moral choice to face. But in discussing her question with her and, later, among ourselves, we began to wonder about whether we lived in a community which forced parents to make such choices, and, if we did, what that meant. Should we accept that? And if we didn’t, what did that mean?

Though restorative justice and the programs it inspires can respond well to some illegalities and injustices, it cannot respond to all of them. It can help to repair the harm done by certain kinds of wrongdoing. Its promise is that, in addition to this, it can involve people in discussions of how the community of which they are citizens confronts larger possible injustices, such as the availability and distribution of basic necessities—food, clothing, shelter, health care. To the extent that restorative justice stimulates this kind of discussion, it not only repairs harm but reinvigorates democracy.