II. Saturday Afternoon: Restorative Justice in the Criminal Law and Social Justice Context

On Saturday afternoon, David Lerman led a discussion of Restorative Justice (RJ) in the area of Criminal Law, which was followed by a discussion led by Howard Vogel of Restorative Justice in the area of larger social and political contexts. David presented a narrative history of his 14 years as a District Attorney in Milwaukee and how he had moved, via a Harvard Mediation Training and through the encountering of a mentor named Fred Gay, toward a successful effort to bring RJ into the Milwaukee D.A.’s office—including the coalition of legislators he was able to help build to fund two District Attorneys to do Restorative Justice work in Milwaukee and Appleton, Wisconsin.

David then focused on some of the realities of victim/offender dialog, in part educating the group about practical aspects of this process (including how referrals to this process are made, the nature of office resistance that is sometimes encountered, and the role of confidentiality agreements that govern the meetings). He pointed out how continuing legal education is now a given for some Restorative Justice work and the fact that his office has now issued a public statement affirming the value of the work, especially in terms of its importance to victims. One striking thing about David’s presentation was the emphasis that he placed on his own compassion and concern for the victim as being at the center of RJ’s power as a new legal form. Often progressives who are into peace and love (like many of us) tend to leap toward the potential value of RJ as a humane way of addressing the offender, emphasizing the power of apology and forgiveness and also of the necessity of taking responsibility. David, however, spoke strongly about the centrality of attending to the suffering of victims, of giving victims a central voice in the criminal process, and of how a principal virtue of RJ is that it accomplishes this goal in a way that the existing criminal justice system does not. This is not to say that David downplayed the healing potential of RJ for offenders but rather that he placed a kind of bracing and realistic emphasis on the necessity of providing healing opportunities for victims of crime as being at the center of what RJ is about. A thought that occurred as he spoke was that those of us opposed to the death penalty will only succeed when we take David’s concern for victims seriously and understand RJ as a strategy for dealing with the enormity of suffering resulting from the infliction of violence on innocent people.

Finally, David briefly introduced his recent efforts to build Neighborhood Justice Circles in Milwaukee that include the community in a powerful way in Restorative Justice processes. Interestingly, he more than once drew our attention to the value of a Talking Stick in allowing powerfully emotional matters to be aired without people talking over each other—that the Talking Stick was of great importance in his opinion in allowing volatile feelings to be expressed and heard without distortion. We then moved outside to take in the beauty of Tomales Bay on a beautiful Saturday afternoon as Howard Vogel shifted our focus to the broader uses of Restorative Justice in large social contexts. Referring us all to the film, “A Long Night’s Journey into Day,” on South Africa’s Truth and Reconciliation Commission—a film that we all would watch on Saturday night—Howard discussed the South African cultural healing practice and philosophy of Ubuntu and linked it to Peter’s earlier discussion of Martin Buber’s conception of I-Thou relationships. He loosely translated the Ubuntu ethic as “I am through the other”, with a secondary correlate that “ if I have violated your humanity, I have violated my own.” Howard then described a course he taught on this subject at Hamline University School of Law and discussed the ongoing work that he was doing with Don Shriver, a leader of the Methodist Church nationally, and the author of, “An Ethic for Enemies: Forgiveness and Politics.” Finally Howard drew our attention to the power of narrative in resolving cultural conflicts in the United States—for example, efforts to create public sites on sacred native lands about which Howard has written extensively. Howard drew attention to the importance of processes allowing a full articulation of conflicting narratives, linking this with the idea that through an understanding of conflicting narrative histories it becomes possible to re- frame “rights battles” that often involve complete failures of two cultures to understand one another.

Following Howard and David’s presentations, a fascinating discussion took place among the group as a whole regarding the difficulty of apologizing. Although many points were discussed in the whole group, this point seemed to bring out the most emotion and interest and offer the most fruitful material for future discussion and writing. In particular, several group members, including Lindsay Harris, brought out the link between the cultural narcissism linked to Peter’s earlier discussion about the desire for mutual recognition and the capacity to take responsibility for what one has done, to apologize, and to seek forgiveness.

The key point brought out here was that beneath the narcissistic outer self in our present alienated culture is an under-recognized and fundamentally unsafe ontological core, a kind of weakness of one’s very being that feels that it simply cannot reveal itself to the other. From this viewpoint, where there is no fundamental position of safety, the denial of desire leads to defensiveness and grandiosity of the narcissistic outer self, which an acknowledgment of wrongdoing threatens, portending a terrifying break or split in the self that might occur. Thus, while we all were drawn to the importance and potentially transforming power of apology, we were also able to go to quite a deep level in understanding the obstacles to bringing it into our legal processes.