Victims Confront Offenders, Face To Face

Guests

Sujatha Baliga, senior program specialist, National Council on Crime and Delinquency
Robert Johnson, former president, National District Attorneys Association

Even when criminal cases end in guilty verdicts, sometimes victims need more. A growing number of jurisdictions are giving offenders and victims a chance to meet each other, and even reconcile. Some go further, giving crime victims a say in the offenders' punishment, without ever going to trial.

Copyright © 2011 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

LAURA SULLIVAN, host: This is TALK OF THE NATION. I'm Laura Sullivan in Washington. Experiencing a crime, from vandalism in your backyard to a violent assault, can leave you feeling scared and angry. Even when a criminal case ends in a guilty verdict, many victims feel they never get the answers they need to move on.

But now some cities and counties across the country are giving crime victims an opportunity to confront their offenders and even reconcile face to face before there's even a trial. They get an apology and a say in the offender's punishment.

Advocates say the process is transformative and healing. But some critics say it's turning justice on its head. If you've taken part in this process or decided not to as a victim, an offender, a prosecutor, tell us your story. Our number is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website. Go to NPR.org and click on TALK OF THE NATION.

Later in the program, we'll hear why Egyptian protestors are flocking back to Cairo's Tahrir Square. But first, restorative justice. With us now is Sujatha Baliga. She's�senior program specialist at the National Council on Crime and Delinquency and former director of Community Justice Works in Berkeley, California. She's been bringing victims and offenders together for several years now. And she joins me now from the studios of Youth Radio in Oakland, California.

Welcome to TALK OF THE NATION.

SUJATHA BALIGA: So happy to be here, Laura.

SULLIVAN: Sujatha, so before you go to trial, you get in a room with an offender who has committed a crime. And then you bring in the victim of the crime and a prosecutor. And you all sit around a table. What exactly happens?

BALIGA: Actually, you know, there is no table often. But let's see. Let me tell you about a case that I recently did in a conservative Southern state. It was a tragic homicide in which a 19-year-old took the life of his 18-year-old fiance. And I had up until this point not taken any homicide cases. This is the first one I had done.

And up until now I've been doing a full diversion program. So we're not even thinking about trial. This is way up front. Doing cases like burglaries and arsons and teen dating violence, where, you know, we're not anywhere close to a homicide-type case.

SULLIVAN: Somewhat lesser crimes?

BALIGA: Right. I wouldn't say, you know, not the kind of stuff that goes to a youth court, for example, in a diversion program, but slightly more serious crimes than that.

And when I got a call from the mother of the young man who had committed this crime, my initial response was, you know, he's in jail. He's been charged with - at that point I believe it was - yes, charged with a capital crime.

SULLIVAN: So a death penalty case?

BALIGA: Yes. And I said there's no chance. You know, this is not a case for restorative justice. The system is not amenable, particularly in your state. And I can't tell too many details, because we're still finishing things up with that case right now. It's not quite a done deal yet. But we're close.

And the mother of this young man was so persistent and told me that she had actually been meeting with the girl's parents. She and her husband were meeting with the girl's parents, and that the girl's parents actually were the one interested in restorative justice. And she said, Can I give them your information? I said I'd be happy to talk to them and tell you the same thing I'm telling you, which is that this is not happening.

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BALIGA: And, you know, I think it was within hours that I heard back from the victim's parents. And just really implored me to consider ways in which restorative justice - they had read about restorative justice. They'd heard about Howard Zehr and his work. He's sort of considered the grandfather of restorative justice and they were quite moved by the idea that their voices could be a part of the decision-making process and what happens to the young man who took their daughter's life.

And so we began - I believe it was about an eight month process to reach the point where last month we sat down face to face, inside jail, with the boy and the girl's parents and his parents as well, the priest that had been counseling all of them, and the district attorney - the state's attorney, I guess is what they call it. And...

SULLIVAN: I'm assuming you had to probably get him or her onboard - the district attorney - onboard early.

BALIGA: Yes. And we did quite a bit of prep work in advance with everyone. And particular with the defense attorney as well, you know, because there's some concerns from all sides that this is not a prudent course of action.

And what ended up happening was one of the most remarkable things I have ever seen. Watching a victim's parents be able to ask the questions that attorneys don't ask on the stand in trial. You know, you're not going to get the kinds of answers to the types of questions you have about sort of, you know, how did my daughter lose her life, how did we get to this point, you know, what did we miss in your relationship that was - they knew one another.

SULLIVAN: Is that what they asked him?

BALIGA: Those were some of the questions that they asked him. More it was giving them a space - actually, instead of the trial and determining guilt, defining what happened in that situation.

Really the first people to hold the floor in these types of conferences are the victims, where they describe who their daughter was and what the loss has been to them. And that frames the dialogue. And then it turns to the young man to explain exactly how we ended up there.

Just this open-hearted discussion of what happened that day. And instead of attorneys, again, asking the questions, it's the victims. And also the boy's parents got a chance to speak about sort of how they think this might've arisen.

And in crafting what people would like to see as an outcome in this case, including things like batterer's intervention programs - and this young man being released early than maybe he would have had we not had this process, in order to speak in high schools about teen dating violence. Speaking potentially some day with the victims about what has the impact of this crime been. I mean, what kind of good can come out of it.

So these victims were particularly remarkable human beings in their desire to engage in this. But then, you know, I also don't want to single them out, and say I meet people like this pretty much every day. People who...

SULLIVAN: How do you get both these victims and these offenders in the room? Are they both equally willing to come in?

BALIGA: In this case, absolutely. Everyone was equally chomping at the bit to get in the room together and to have a dialogue that they can't have because they're prepping for trial. I mean, there's a way in which the truth has to be masked, because anything can be used against this young man.

Whereas we did this in the plea conference, you know, what the - the posture of this was a plea conference. Everything's privileged. And so everything can come out. The truth can come out. And so and everybody wanted that.

And I can't say enough in my former life as a criminal defense attorney how often people really do want to just tell the truth about happened. A lot of people confess. And then after the fact I've spent many times trying to get my clients to not want to say everything that happened, you know? It's a natural human instinct. It's a really moral instinct to want to come clean. And so it's - I think it's - and creating spaces in which it's a safe thing to do to come clean.

SULLIVAN: Now, why is it...

BALIGA: It's really beneficial.

SULLIVAN: Why is it a safe space for them to come clean? If they come through in these conversations and say, yes, I did kill your daughter and this is what happened, doesn't that hurt them in their trial?

BALIGA: In a plea conference everything is technically privileged and confidential. It's just like settlement negotiations in a civil suit, you know? You're not going to be able to really tell the truth about stuff. The only way that that could be used is if he got on the stand and then said - which I know he would never do in this case - but got on the stand and say, actually, it was somebody else. He could be impeached with what he confessed. But the D.A. can't use that against him.

SULLIVAN: They can't?

BALIGA: That's how plea conferencing works and why I think it might be a really excellent format for doing upfront restorative justice processes in more severe, you know, crimes of violence. Things where somebody is definitely going to have to serve some period of time given the way our current criminal justice system operates.

Now, in my ideal world we'd be doing even more and more cases in a full diversion context, which is what we're doing here in Alameda County with crimes like burglaries and car theft and, you know, sort of midrange assaults and things of that nature where the district attorney, the local district attorney is diverting cases to me prior to even charging the young person with a crime. And then when we resolve the case through using restorative processes, then the case does not (clears throat) excuse me the case does not even get charged. And so...

SULLIVAN: Let's hear from some of our listeners. Let's begin with Matthew from Concord, California.

Matthew, welcome.

MATTHEW: Hi. Can you hear me?

SULLIVAN: Yes, I can.

MATTHEW: I just wanted to comment and say that I think this is really great. My mother was killed by a drunk driver and I wanted to meet with the guy. He was a little bit older than me, about one year. I think he was 20. And I wanted to forgive him and I felt sorry for him because his life was ruined on a stupid mistake. And even though he killed my mom, you know, he didn't do it on purpose, and I just think it's great.

I wish I could've met with him and I hope this becomes commonplace in the future for other people.

SULLIVAN: Thank you, yeah.

MATTHEW: And I'm gonna hang up.

SULLIVAN: Thank you so much for the call. We're so sorry for your loss. Sujatha, have you found that a lot of victims want to take part in this process? I think a lot of us assume the victims just want to see their perpetrators pay.

SUJATHA BALIGA NATIONAL COUNCIL ON CRIME AND DELINQUENCY: I think that that's an unfortunate characterization of most victims. I can't tell you how many people I meet that sound just like Matthew. And again, Matthew, I am terribly sorry for your loss as well. And you know, his voice is quite representative of a large segment of society, and you know, it's and even the word forgiveness, which is a huge word and it raises a lot of stuff for people. And I - but I do meet a lot of people who say this.

You know, a police officer's widow reached out to me earlier this year and she had been vehemently in favor of her husband's killer getting the death sentence. And four or five years later, she's completely changed her mind. She's forgiven the man who took her husband's life and she wants to meet with him. You know, people reach out to me with these kinds of stories all the time.

SULLIVAN: Some people might say, you know, some people could argue, well, you know, it's okay if a victim forgives this person, but this person's crime was really against the state. It wasn't against the victim. How do you deal with that?

DELINQUENCY: I would say that it's against both. And to the degree to which we can incorporate victim's desires into our processes, the better. And you know, obviously there's statutory maximums, right? If somebody - for example, there's a vehicular homicide, an unintentional one, and somebody is harboring a lot of anger and this is totally a reasonable response from a victim, saying, I want the death penalty for this person who took my loved one's life, you know, that's just not within the statutory bounds of what we're doing here, right?

But there is a great deal of discretion that the state has, that district attorneys in particular have, to make decisions about charging and about ranges within that, particularly in plea deals, which is how we resolve most of our cases in this country. So to involve victims' desires in that process actually - that seems like a viable option.

SULLIVAN: We're talking with Sujatha Baliga. She's a senior program specialist at the National Council on Crime and Delinquency. And we're talking about programs that bring crime victims and offenders together before trial. And in a moment, we'll talk with a career district attorney about why many prosecutors want nothing to do with these programs. I'm Laura Sullivan. Stay with us. This is TALK OF THE NATION from NPR News.

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SULLIVAN: This is TALK OF THE NATION from NPR News. I'm Laura Sullivan. Justice in the American court system generally follows the same basic pattern - arrest, trial, sentence or acquittal. That's changing in some places. A number of states, cities and counties are now bringing victims and offenders together before a trial. Victims often get answers and an apology. Offenders get a reduced sentence without ever going to court. A new law in Colorado takes effect next month that encourages exactly these kinds of meetings, though there's no money to support it.

The programs do have their critics. A number of prosecutors say it's a sham, not justice. And we'll talk more about that in a minute. If you've taken part in this process or decided not to as a victim, an offender, a prosecutor, tell us your story. 800-989-8255. The email address is talk@npr.org. My guest is Sujatha Baliga. She's senior program specialist at the National Council on Crime and Delinquency, but she often works to bring victims together with offenders.

Joining us now is also Robert Johnson. He spent 28 years in the D.A.'s office in Anoka County, Minnesota and just retired after 12 years as the district attorney there. He's also a former president of the National District Attorneys Association and joins me now from Minnesota public radio in St. Paul. Welcome to TALK OF THE NATION.

ROBERT JOHNSON: Thank you for having me.

SULLIVAN: Many prosecutors of leery of these kinds of programs. And you're a long time prosecutor. Is this something you've tried?

JOHNSON: I have tried it. Understand that this is part of the evolution of the criminal justice system in this country and other countries. When I started prosecuting actually in the late '60s, victims were simply another witness. And as the victim movement evolved, we started to recognize that they were much more than just another witness. Statutory, even constitutional protection in states has come to victims. And the restorative justice movement is a part of that, first really focusing on the victim and trying to make them more whole, as the name implies, and it's evolved in a number of different ways.

It is post - it's pre-conviction and it's post-conviction. It's circle-sentencing. It's a lot of different ways that it's being handled around the country and in other countries. Now, in my office, I started it post-sentence. So once a person was convicted, we'd offer an opportunity ...

SULLIVAN: After they were in jail or prison.

JOHNSON: Right. After they were convicted. And they may not be in jail, they may be simply on probation, but we then would approach a victim and see if they wanted to engage with the offender. And then we would engage with the offender and see if they wanted to. So we were really in a...

SULLIVAN: Now, did you find that most victims wanted to engage?

JOHNSON: Well, it varied, obviously. Each situation is separate. Each person is going to be different, but we certainly found a number of victims that did want to engage in this. They wanted to understand where the offender was coming from. They wanted to have their opportunity to directly confront the person. As it evolved in my office, we also found, in my view, that it was helpful also for the offender so the offender could really see what the consequences of their act would...

SULLIVAN: Did you get a lot of pushback when you were trying to implement some of these programs, especially when it was pre-trial? I mean, you're - you have been an elected prosecutor. I think you were elected 12 times to office. Did you find that there was any fear of being considered soft on crime?

JOHNSON: Well, I didn't, but I may have been in a bit of a unique situation. I did start a pre-trial diversion project, a pre-charged diversion project. I had a judge that encouraged me to take restorative justice to that project so that in that case we were doing restorative justice pre-charge. But that was at a judge suggesting that so we had that part of the system that certainly recognized the value of this. I never had any pushback from police or other groups.

To me it was, in my view, something that was helpful to the victims. It also had an impact on the offender, which made it, in my view, less likely that they were going to recidivate, they were going to commit another crime. But I never had any pushback. I can understand prosecutors, though, who have concerns about this. Some of it is certainly driven by budgetary concerns. To do a program like this takes resources.

So if you're putting resources into restorative justice, you're not then putting resources into what may be a high demand prosecution load. It's also a concern that if you do have a group in your jurisdiction, you know, understand we've got over 2,300 elected prosecutor offices around the country. And in some of those jurisdictions certainly you're going to have some groups that think that this is simply soft on crime and that your efforts should be directed simply at convicting people and putting them away for as long as possible.

SULLIVAN: Well, let's let's take a caller. Let's go to Wendy in northern Illinois. Welcome to the program.

WENDY: Hello.

SULLIVAN: Hi.

WENDY: I just wanted to make a comment. First of all, I think that it's important for prosecutors to work with victims very closely from the get-go, which is something that I think, as Mr. Johnson reflected, something that's been implemented under law in most states. It's very important for victims to have an opportunity to have a say in what happens when people are being prosecuted for harming them. But I think that the concept of balanced and restorative justice is a great theory.

The problem that I have found is that defendants often are unable to truly accept responsibility for the harm that they've caused and in order for it to be truly balanced, there has to be equal opportunity on both sides to have their needs met, I guess. And you know, one side is the victim in society and the other side is the defendant and the defendants have to more than just give lip service to saying, I'm sorry, you know. And that's where, I think, the concept starts to break down in the real execution of the balanced and restorative justice programs that I've seen.

SULLIVAN: Robert, have you found that? Have you found a situation where you don't feel like the offender is actually truly sorry or that it's...

JOHNSON: Sure.

SULLIVAN: ...they're simply not capable of being sorry enough?

JOHNSON: No, that happens. It certainly happens. A number of the offenders are con people, so you're going to have to accept that not every restorative justice effort is going to work. That being said, it does work in some cases and we think that it's - or I think that it's something still worth pursuing, assuming you have an environment where the prosecutor's operating, that they're comfortable taking this forward, and also that they have the resources to bring. And that's particularly important in a government that's contracting and not providing those resources.

SULLIVAN: Sujatha, have you found that as well in terms of getting offenders to actually feel bad for what they've done?

DELINQUENCY: I think it's an issue of appropriate case selection and also an issue of proper prep, so when you're working with people in advance to make sure that they do have a full understanding - in advance of getting in the room, I mean, I will meet with people several times. Now, if I feel that there's a way in which somebody is going to not meet the needs of the victim by being really shut down or really cold and I don't see that anything's moving forward, I don't know that I would move forward with that.

So I think it's really - it's a facilitator issue to be able to be really well trained in making sure that the person is coming to the table with a desire to be engaged in a discussion about true accountability directly to the people that they've harmed. And that's sometimes really challenging.

SULLIVAN: Well, let's talk to Hal (sp) in Worthington, Ohio. Welcome.

HAL: Hello.

SULLIVAN: Hello. You're on the air.

HAL: Okay. I was - I'm retired a couple years from teaching criminal justice for almost 40 years, and for the last 10 years or so I called myself a recovering lawyer. I was a volunteer victim/offender mediator, and the thought that I had and what I hear being talked about is that this gives victims especially a chance to be in control. I often had victims say, well, the offender didn't apologize in court, if we got the referral after court. But they couldn't. And this gave victims the chance - a real chance to take charge and to put issues in their own way.

And one example I thought of was a woman whose - a guy blind drunk with a blackout walked into her apartment. And she and her boyfriend had to move out and she had the windows nailed up and so forth afterwards. And she volunteered to be in it. I mean, everybody who came in was a volunteer. And she came in with her head down. She was totally scared and she walked out with her head high. And she may have been angry. You know, there's a lot to forgiveness.

And forgiveness can be being just able to let go of fear.

SULLIVAN: Yeah. Hal, thank you. so much for the call. Sujatha, is that what you - I mean, is that what you're seeing with some of these victims, is a chance to take some of that power back after feeling it ripped away from the crime that happened?

BALIGA: Absolutely. Whether or not it's a victim-offender dialogue after the crime is long past, you know, 24 years after - I had a call this morning from somebody who facilitated one of these dialogues, 24 years later felt like it was a wonderful experience and a way to get power back. But even more so upfront where, to the degree possible, we actually engage victims in the dialogue process, and - it's so important to mention - also the community in the process, the community members, family members on both sides really being a part of participatory dialogue and decision-making. That is a way to give power to victims.

And in some ways, the state can even stand in sort of to remove power from victims at times, depending on the district attorney who's involved. But when victims actually get to be part of participatory dialogue and decision-making, it is an incredibly empowering experience.

SULLIVAN: Well, we have Douglas on the line from Little Rock. Welcome.

DOUGLAS: Welcome. My experience happened with my stepdaughter in Berkeley, California. She was a black America honor student her senior year at the university, and she was walking across the street on Grove and University. And she was run over by a motorcycle. Her and her girlfriend were run over. Her girlfriend survived, but she passed. And I refused to go out there, because I didn't trust my reaction to the situation. But my wife went out there, and she testified on the behalf of the person that was riding the motorcycle. And it made a tremendous difference in her experience. And the family, for many - for several years, sent her and communicated with her, the motorcycle son's family.

SULLIVAN: That's a tremendous story. I mean, is this - Robert, let me ask you. In light of this story, is this - I mean, a lot of prosecutors might look at that case and say, look, this is a violent death, a motorcycle accident. This isn't something that we can put into a room and have everybody feel better about it. Is this the kind of case that you would have a hard time with and putting this process forward?

DOUGLAS: I'll tell you how it impacted me.

SULLIVAN: Well, let - go ahead. We'll come back to you in one second. But let's have Robert Johnson talk about this.

JOHNSON: Well, remember, we did post-conviction. If this would have been in my office, it would have been a post-conviction mediation, victim-offender restorative justice process. But certainly, it could be appropriate. It can be appropriate in any type of an offense that involves a victim, and it's an effort to make the criminal justice system more meaningful. Historically, it's been a cold impersonal process, and victims go away not really feeling that they've had their issue addressed.

Now, the prosecutors represent, as has been said, both the state and the victim. We're going to make sure that the person suffers punishment for the offense, but appropriate punishment. And we listen to victims. If you're doing a plea bargaining restorative justice effort, prosecutors are going to be listening to it. They're not going to be totally controlled by that, but they're going to take that into account in the result that they work towards that satisfies both punishment and restitution. Now, all the other pieces that we have to consider as prosecutors as we work towards a resolution of the case.

SULLIVAN: Douglas, thank you so much for that call. We're talking to Sujatha Baliga from the National Council on Crime and Delinquency, and Robert Johnson, a former president of the National District Attorneys Association. And you're listening to TALK OF THE NATION, from NPR News. Robert Johnson, let me ask you, again, what - have you heard from a lot of prosecutors that this is just out of the question? Have you heard that response from them?

JOHNSON: No. No, I haven't. Really, it's going to be controlled by the form it takes. So if a prosecutor's involved in restorative justice, the prosecutor has an opportunity to craft it in a manner that they're comfortable with. It may be as much or as little as they believe that they can resource to start with their budget, and that they're comfortable with in the community that they represent. So...

SULLIVAN: So why do you think we're not seeing more of this?

JOHNSON: Well, you may be seeing more - you may not be seeing it. It may, in fact, be going on in different parts of the country. It's such a diverse criminal justice system at the state level, as I said, with over 2,300 little pieces, and everybody is doing their own process because they're totally independent from the thousand-person prosecutor office in L.A., to the part-time prosecutor who works 5 percent of their time in a rural North Dakota county. So I think you'll have different forms of it going on around the country that you're not going to be hearing about. There's certainly - the whole restorative justice concept is expanding in this country, and in other countries - Canada, Australia, New Zealand do a lot of restorative justice work.

SULLIVAN: Sujatha, have you - what do you think was the most meaningful moment that you've had in this process?

BALIGA: Oh, my goodness. I couldn't begin to narrow it down to one. I mean, there are so many opportunities where I get to see young people wake up to how their behavior has affected others and see parents understanding the ways in which their own children's trauma in their lives. These kids live - many of the kids I work with live unbelievably painful lives. And for people to wake up about the trauma that their children are experiencing and how that's leading to offending - to see victims have their hearts opened to young people who've done harm by them, to see victims feel empowered by their voices being included, I mean, I see it over and over again in all of these cases that I do.

I also really feel heartened by the system's ability to embrace it and to understand that this might be a better way to go. I, too, haven't had very much resistance, interestingly. It's been really a budgetary issue. And the hope is that people will start to see that this actually is quite cost savings in the end, especially when we can do it as diversion. It's always cheaper than trial. It's certainly cheaper than sending a kid through the juvenile justice system. So I hope we can move in that direction.

SULLIVAN: Sujatha Baliga, a senior program specialist at the National Council on Crime and Delinquency. She joined us from Oakland, California. Robert Johnson just recently retired as district attorney for Anoka County, Minnesota. He also served as president of the National District Attorneys Association, and joined us from St. Paul. Thank you to you both so much for joining us.

JOHNSON: Thank you for having us.

BALIGA: Thank you.

SULLIVAN: Coming up, the protesters are back in Tahrir Square in Egypt, hoping to revive the revolution. We'll talk with NPR's Mike Shuster about what's driving the new protests. Stay with us. I'm Laura Sullivan, and this is TALK OF THE NATION, from NPR News.

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