My old pal, Ken Lammers, writes about an idea that remains a darling of the legal academy, and a wistful dream of defense lawyers, but has never gotten any serious traction in criminal law. Restorative Justice.
One of the academic articles that caught my eye the other day was one about restorative justice in cases involving violence against women written by Lorenn Walker and Cheri Tarutani. Admittedly much of it seemed rather shallow – a kind of broad philosophical assertion that restorative justice would be a better system filled with direct and indirect platitudes but not much else. It was also somewhat confused in that it was primarily dealing with inter-generational violence against women and the hopes that something other then a prison sentence can save those damaged by the people who are supposed to be looking after them and protecting them as they grow up, but it also threw in stuff about violence between domestic partners. The latter is what caught my attention.
A few decades ago, domestic violence, meaning the violence that happens between people who lived together, were married or dating, had personal relationships, was treated differently than “stranger violence.” Cops took a mugging on the street seriously, but when they showed up at a house where a married couple were engaged in conduct that threatened harm, they would slough it off. The cops didn’t want to get involved, and more particularly, didn’t view a husband teaching his wife a lesson with the back of his hand as a crime. It was a family matter, as far as the cops were concerned.
Women, understandably, were furious that cops didn’t take a wife being beaten by a husband seriously. The flip side was that wives abused, beat, sometimes stabbed, their husbands as well, but in our world where only women are victims, this reality rarely hit the radar screen, so it went unrecognized in laws like the Violence Against Women Act. Or the policies that followed.
The authors don’t like the mandatory arrest policies which have been adopted in large portions of the country when officers respond to a domestic violence situation and find actual evidence of the violence. In fact, they called it patriarchal.
The solution to cops not taking domestic violence seriously was to remove discretion altogether. If there was violence, there had to be an arrest. If it was between a man and woman, the assumption would be that the female was the victim and the male the perpetrator, absent sufficiently clear proof to the contrary. But either way, someone was taken away in cuffs.
[T]here is a power dynamic at work (several actually, but we’re going to stick with just this one for simplicity’s sake). The victim in a domestic is rarely the one who decides to charge the batterer. Nor is the victim the one who directly decides whether the charge should proceed in court. That, however, is not the end of the story. Victims have, and in an unfortunately large number of cases wield, an indirect power to decide whether a charge proceeds. They can refuse to testify, “forget” what happened when called to the stand (“I was drunk. I don’t remember.”), or give an alternative explanation (an amazing number of victims fall into doors). Often, and if you work in domestic courts it seems very often, the victim is 100% in the camp of the defendant.
Ken is correct, and this was the impetus for the mandatory arrest policy, to remove the power dynamic between the warring factions. How do you distinguish the spouse who doesn’t want an arrest for proper reasons from improper, from legitimate motivations to the rationalizations of the abused?
But what about cases where arrest and prosecution, and punishment, isn’t what a spouse legitimately wants? Once the cops are involved, they get no say. There’s no way to call off the wolves, even though they only wanted the cops to stop the pounding.
Would restorative justice work better? I don’t know. You rarely see a down-in-the-trenches, nuts and bolts type of discussion as to how it would work. If it means some sort of couples counseling working toward better behavioral patterns, I’d love to see that. I doubt that harmful behavioral patterns exist only on one side of most dysfunctional relationships.
If you believe that couples counseling is going to work, then you might be more inclined to accept this path as a viable option. But as Ken, ever the hard-nosed realist, points out, the nuts and bolts can be a problem.
HOWEVER, the option would have to be closely monitored so that it doesn’t just become another part of the pattern of abuse. And that is a major concern for something like this. Ask anyone who has worked in domestic courts what would happen if the victim was given – solely at the victim’s discretion – the ability to opt out of the courtroom. We all know that there’d be far too many victims who would opt out every time and you’d end up with victims who had opted out five times or seven or how ever many it took before they were in the hospital or morgue.
Believe in unicorns all you want, but there are no unicorns in the morgue. Just dead bodies. While Ken may be far more cynical about it than me, or you, it’s more a matter of degree than of reality. Some will fail, and as a result, some will be harmed.
Second, the abuser would try to game this just about every time. He/she would pressure the victim to opt into it and put as little in as possible. It’s just another way to avoid jail time. This, of course, is one of the greatest blindspots most proponents of restorative justice seem to have. They assume the defendant will act in good faith and be interested in change. Some few will; the rest will range from tepid participation to downright hostility once they’ve escaped the possibility of punishment by the courts.
There are people who mean well, who act in good faith and sincerely regret their worst impulses which end up in a one-time fit of violence. But contrary to the cries of sad tears about the “victims” of the legal system, there are bad people out there who will not only continue to do bad, violent things, but will game restorative justice just as they tell the judge at sentence that they’ve learned their lesson and will never murder again. But don’t really mean it.
Law is a bludgeon, not a scalpel. Much as our job as criminal defense lawyers is to serve our client’s interests, we are occasionally still human beings, divorced from the representation of any individual accused of a crime. Seeing more than our share of bad people in the world, we know that unicorns don’t prance on rainbows, and people will end up dead if we just pretend everybody is wonderful, well-intended and sincere. As human beings, we don’t want to see anyone harmed, anyone die.
How to navigate the real world so nobody ends up harmed or dead isn’t easy. The question is whether policy is built on a foundation of reality or identity. Is restorative justice a victim of the patriarchy, stealing women’s agency to be merciful and replacing it with knee-jerk imprisonment to save victims from oppression? So it’s argued, but then there will be people, both male and female, who end up in the morgue for the sake of rosy rhetoric. Is that an acceptable price to pay?