"Restorative Justice" Is Potentially Destructive, Too

The New York Times magazine has published an article about the application of the “restorative justice” model to a Florida murder case. To get this out of the way immediately (I’ll get to the details later), the case centers on a 19-year-old who shot his girlfriend in the face. The families of the perpetrator and the victim were quite close. The girl’s parents and siblings, who described themselves as devout Catholics, elected to forgive the murderer, and to work that forgiveness into getting him a reduced sentence and sparing him the anguish of a trial. They did it because Jesus, and also because they didn’t want to become “trapped in anger” over the boy they loved blowing their daughter’s and sister’s head off while she was on her knees and pleading for her life. The article bears a pithy title, “Can Forgiveness Play a Role in Criminal Justice?” — to let you know right away on which side of the issue the author comes down and also to prepare you for the warm and fuzzy feeling this article is apparently supposed to give you. Alas, it has mostly left me cold.

“Restorative justice” is to criminal law what mediation is to civil law — a process for resolving a given matter “amicably”, while avoiding the stresses, the expense and the uncertainty of a formal trial. This resolution takes the form of a conference where the victim and the perpetrator get a chance to speak; the victim about the effect of the crime, and the perpetrator about how the crime was committed and why. Attorneys, the prosecutor, and a restorative justice specialist are also present. The victim has a chance to recommend a sentence, and the prosecutor later offers a plea-bargaining agreement (almost always with a reduced sentence) based on what he or she has heard. Ostensibly, the purpose of restorative justice is to “promote healing”, but as someone who’s been made cynical by a fairly long career in practicing law, I don’t believe that for a second. Rather, the main purpose of restorative justice is to promote saving money, both for the state and the defendant. The ultimate cost to society, however, is what worries me. The author, Paul Tullis, is quick to point out that the restorative justice route is highly unusual in a murder case; the model is applied almost exclusively to petty non-violent crime.

I sure hope it stays that way.

Here are the facts of the case as related by Tullis: Conor McBride and Ann Grosmaire of Tallahassee, Florida, together for three years and engaged to be married, spent almost two days arguing about various insignificant matters. At one point, while sitting in her car, Ann told Conor that she wanted him to die. Conor went inside the house, retrieved his father’s shotgun from a closet and contemplated suicide. Then Ann went into the house and became hysterical. Then Conor came to the living room to talk to her, and she said she wanted to die. Conor returned to the bedroom where he had been sitting and got the shotgun. Ann followed him and somehow, it is not clear how, ended up on her knees in the hallway. Conor pointed the shotgun at her and asked whether this was what she wanted. Ann raised her hands defensively and screamed “No, don’t!” at which point Conor fired the shotgun at her face. Afterwards, believing his fiance was dead, Conor went on an aimless drive for awhile, but ultimately turned himself in and confessed to the crime. Ann was, in fact, still alive at that time. She died without regaining consciousness five days later.

Understand, we only have the perpetrator’s version of how the shooting occurred. Because restorative justice is not an adversarial process, little in the way of forensic evidence comes in, and the perpetrator cannot be cross-examined. As long as his story is grossly consistent with the known facts of the crime, there isn’t anything the prosecution can do to challenge it.

I appreciate the fact that the perpetrator in this case confessed to the police instead of trying to dispose of the body or lie about an intruder, and I credit his confession that Ann screamed “No, don’t!” right before he shot her, rather than “Go ahead, shoot me!” Still, I find his account fairly self-serving, and his claim that Ann tripped in the hallway over some unseen impediment not particularly credible. Of course, no forensic expert could tell us what was said during those final moments before the gun was fired — but evidence could possibly tell us whether the victim really tripped or if she was actually dragged into the hallway. Since the case was resolved in a non-adversarial manner, this simply never became an issue.

Of course, the fact that Conor McBride went and got his father’s shotgun strongly suggests premeditation. The fact that the victim was on her knees and raising her hands defensively at the time she was shot is very damning. McBride explained away these circumstances in the most favorable way possible. He did a good job of negating any impression that he was deliberately violent, but I find his account dubious not the least because of this:

Conor was prone to bursts of irrational rage. Ann never told her parents that he had struck her several times.

In other words, Conor McBride was abusive. What happened is consistent with the pattern of escalation that generally characterizes domestic violence — first there is verbal abuse, then come the blows, then comes the use of weapons. The presence of a gun in the abuser’s home merely makes it more likely that the pattern will end in homicide. (Abused women are five times more likely to be killed if the abuser owns a firearm.)

And also this, which strikes me as really coy:

Michael [Conor’s father] now feels, with searing regret, that he presented a bad example of bad-tempered behavior. “Conor learned how to be angry” is how he put it to me.

Nice. So the perpetrator was an abusive boyfriend, raised by an abusive father, who kept a shotgun in the closet. Is it just me, or is this homicide beginning to look like less of a freak occurrence and more like something that’s not nearly as surprising as it is tragic?

I don’t practice criminal law, but my colleagues in the field invariably tell me that there is no defendant more capable of projecting a sympathetic, sincere demeanor than a domestic abuser or a date rapist. Abusers rarely come off like cardboard villains we see in bad Hollywood movies, nor do they often fit the stereotype of your “typical” wife-beater in an A-shirt two sizes too small for his beer gut. Abusers are often charming, amiable, contrite. They excel at projecting an image of a sensitive “nice guy” who just momentarily got too emotional (“[I] loved not wisely, but too well,” is how Othello explains murdering his innocent wife), subtly deflecting the blame onto their victims for making them upset enough to lash out physically. They can be extraordinarily moving in conveying grief over what happened, and to varying degrees, they actually believe their own ruse. Part of what makes abusers so sympathetic is that they are often sincere in their emotional suffering, even remorse, despite the fact that those emotions inevitably morph into anger that fuels their violence. To build up to an act of violence, perpetrate it against someone who loves him, and then collapse in grief over what “happened” is the abuser’s way of experiencing catharsis, and it’s a cycle that’s not easy to break.

Doubtless, the Grosmaires’ religiousity would be thought by many to be beyond criticism. Still, for what it’s worth, the thing that they call “forgiveness” is what I call “denial”. Forgiving their daughter’s killer and asking for a reduced sentence for him (some of the family requested the sentence to be as short as five years) allows them to discount the fact that their daughter was involved in an abusive relationship where she was physically hurt on several occasions; and that her abuser had access to a firearm. Casting McBride as a good kid deserving of sympathy, who merely had a momentary lapse of sanity, obscures the fact that on some level, they failed to protect their daughter. (Yes, a 19-year-old is an adult, and as a general matter, I don’t think parents should insert themselves into children’s romantic relationships. However, when a teenager is being abused by her boyfriend, I feel strongly that her family has a moral obligation to intervene.) Their decision to opt for restorative justice was not so much an effort to do right by Ann and others like her, but to preserve their own peace of mind and avoid facing the horrid reality. It’s an understandable reaction to what happened to them, but a far less virtuous one than their supporters imagine.

“Healing” in a situation like this is important — but it is the function of mental health professionals and support groups, not the criminal justice system. A violent crime doesn’t just hurt the immediate families of the victim and the perpetrator — it is a wrong done to the larger community. How the state addresses the crime is sure to have long-term consequences for many people in the future. The prosecutor in this particular case, Jack Campbell, was wary of the restorative justice approach throughout and ultimately gave Conor a fairly stiff — albeit reduced — sentence. Tullis subtly disparages Campbell as a careerist who does not want to appear soft on crime. But in speaking to another news source, Campbell summarized everything that I believe is troubling about the restorative justice system as applied to violent crime:

’My boss, Mr. (Willie) Meggs, gives us an interesting mandate: Do the right thing,’ Campbell said. ‘Well, what’s the right thing? The right thing for the Grosmaires, the right thing for Tallahassee, the right thing for every other daughter who’s in the middle of an argument with her boyfriend, the right thing for every other person who shoots someone?’

When a violent crime occurs, it raises issues of public policy, issues that go far beyond the fate of the individuals involved. Nowhere is this more pertinent than in a domestic violence case.

Historically, the criminal justice system was reluctant to get involved in domestic violence cases. The beating of wives, girlfriends and children was considered a routine private matter, not something that the police or the courts should get involved in. If a man killed a woman “in the heat of passion” (and provided he was not of a significantly inferior social standing), he would be treated leniently, if not given a complete pass. Even those who thought that domestic violence and “crimes of passion” were bad generally felt that such things should be addressed primarily by family and clergy, not by the law. I consider it one of feminism’s greatest victories in the West that domestic violence and acquaintance rape are now at least officially regarded as real crimes, and the “passionate” killing of one’s romantic partner as a real homicide.

But the general feeling that these are “special” crimes, where the perpetrator deserves sympathy on par with the victim and for which the traditional justice system is too heavy-handed, persists. Perhaps the starkest example of this attitude is the 1977 murder of Bonnie Garland, with facts eerily similar to the murder of Ann Grosmaire. Bonnie Garland’s boyfriend of several years, Richard Herrin, bludgeoned her with a hammer while she was asleep at her parents’ house. As she lay dying, he drove to a Catholic church in a nearby town and confessed his crime to a priest.

Although there was never any doubt that Herrin intentionally and brutally killed his girlfriend without a shade of justification, the Yale community (both Herrin and his victim were Yale graduates) and the Catholic Church mounted an aggressive campaign to have him exonerated, based, believe it or not, on his “good character”. Their efforts resulted in Herrin being convicted of first-degree manslaughter instead of second-degree murder, which made him eligible for parole in only eight years (though he ultimately ended up serving seventeen). Herrin’s supporters were disappointed that he was convicted of anything at all.

When Bonnie Garland’s parents expressed anger and dismay at all the sympathy for their daughter’s killer, they found themselves lectured on the beauty of forgiveness. Nothing will bring Bonnie back anyway, they were told, so why should this nice young man have to go to jail? He already said “sorry”, like, several times, so what more do you want? Is it really necessary to ruin two lives? Stop being so vindictive!

Never would anyone think to make such an asinine argument had Richard Herrin murdered Bonnie Garland for insurance money, rather than out of rage over being dumped. But, although the Garland case is extreme, variations of this precise argument are often heard in cases involving domestic violence, killing of an intimate partner or date rape.

Of course, there are important differences between Bonnie Garland’s and Ann Grosmaire’s cases. In the latter case, no one advocated on behalf of the perpetrator to the point of denying that the victim’s life had any value at all. No one ever suggested Conor McBride should be let off the hook. Nevertheless, in Ann’s family’s arguments for a drastically reduced sentence there was a hint of that disturbing Garland murder flavor — the mentality that comes close to equating the suffering of the perpetrator due to his own deliberate (and heinous) act and the suffering of the victim as a result of that act being inflicted upon her.

The opportunity for some kind of dialogue that restorative justice offers makes it understandably attractive to victims and their families, who are trying to grapple with reality. In the American system of justice, criminal defendants have a right not to incriminate themselves, the practical consequence of which is that they almost never testify and never publicly discuss their crimes — except in a very small number of cases, and even then, only a long time after the events in question. A criminal defendant is therefore often an enigma, particularly if he is a heretofore well-liked person who commits a heinous crime all of a sudden for no discernible reason. People have a profound need to believe in a just world, the unbreakable rule of cause and effect, which means that nice boys don’t just wake up one day and shoot their girlfriends in the face or bludgeon them to death with a hammer. The desire for an explanation from the perpetrator, some explanation, is very strong. Hearing the perpetrator explain is a chance to make some sense of the crime, which is what I suppose the proponents of this model refer to as “healing”.

Problem is, just because the perpetrator is willing to talk about the crime — in exchange for a significant discount on the sentence — that does not necessarily mean he will tell the truth, or the whole truth. It does not necessarily mean that the victim’s family will like what they hear, either. And, as I’ve mentioned before, I believe that the very term “healing” — like “forgiveness”– is often a loaded one within the context of violent crime and does not necessarily adequately describe what is happening in the participants’ minds. Comfort is not to be equated with healing. Not all things that make us feel better necessarily cure the underlying ailment.

But the far bigger problem with the restorative justice model as applied to violent crime is that it creates a troubling precedent and threatens to undermine the gains that women have made in obtaining justice for violence perpetrated against them by acquaintances and intimate partners. If restorative justice becomes a standard option in cases involving domestic violence, spousal homicide and date-rape, victims and their families will find themselves under a great deal of social pressure to “forgive” and to “heal” while cutting the perpetrator a break – because that’s how these types of wrongs have been traditionally addressed. Those who insist on a trial will be termed “vindictive” and “trapped in anger”. So the peace of mind of people like the Grosmaires isn’t the only thing at stake in such cases. The existence of an adequate deterrent against future crimes, promoting societal attitudes that do not indulge violence against women and maintaining the opportunity for future victims to obtain justice are much, much more important, in my opinion – and these are ends that are ill-served by the restorative justice model.

As of now, restorative justice is mostly applied to cases of petty theft, hooliganism and minor juvenile offenses — in other words, crimes that we do not consider serious enough to absolutely warrant a formal trial and a full sentence. I would hate to see domestic violence, rape or homicide by an intimate partner added to that category.

P.S.: After serving his twenty years, Conor McBride will spend another ten on probation. Per the Grosmaires’ request, he will be required to spend those ten years talking to teens about dating violence and the dangers of anger. But not the dangers of firearms, apparently. Because from our cold dead hands, and this never would have happened had the victim also been armed with a gun, and nothing makes a lovers’ quarrel safe like a bunch of loaded guns within reach, et cetera, et cetera, et cetera. Amen.

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