Illustration by/Katty Huertas
A restorative justice circle involves the victim and the accused, along with a parent or guardian for any minors involved, a restorative justice facilitator from the attorney general's office, and a few other adults.
Illustration by/Katty Huertas
The 14-year-old girl was on her usual commute home when it happened: two other young girls dragged her off the Metro and began punching and kicking her, beating her to the ground.
"All of a sudden these girls came out of nowhere. They pulled her off the Metro and started stomping her, it was just brutal," says Stacy W., the girl's mother (DCist is not naming the victim, as she was a minor when the assault occurred, and is only using the first initial of her mother's last name as an additional privacy protection).
After the incident about three years ago, "she pretty much was afraid to go to school. She was trying to understand why these girls were coming after her because she's never really had any issues with anybody coming home from school," Stacy says.
What happened to Stacy's daughter is far from unusual in the District. Many students have long said that they feel unsafe walking home from school, scared that conflicts on campus and elsewhere will turn violent on their commutes. Young people have been beaten and even shot or stabbed while walking or riding the Metro to and from school.
What is far more unusual is everything that happened next.
Police identified at least one of the girl's assailants, another teenage girl who had joined in on the assault. But the D.C. Office of the Attorney General, which had jurisdiction over the case, chose not to prosecute her.
Instead, with the support of Stacy and her daughter, they decided to refer the accused assailant to the OAG's restorative justice program, which tries to funnel juveniles away from incarceration and find other ways of mending the harm done to victims.
Restorative justice programs have been gaining in popularity in the United States over the last two decades, and they now exist in jurisdictions all over the country. The approach focuses on reaching a resolution between the harmed and the accused parties that does not involve incarceration or increased contact with the criminal justice system.
The approach is often employed by school systems, and it is otherwise mainly used with juvenile or young adult offenders. New York and California have both been leading players in setting up restorative justice programs in schools and for juvenile offenders. Increasingly, localities are also implementing such practices for adults (though generally not for violent offenses).
Such restorative justice programs are usually run by community organizations, existing outside the criminal justice system. The point is to reduce a juvenile's contact with that system, because studies show that it tends to result in worse outcomes for young people, including increasing their likelihood of being incarcerated as adults.
But D.C.'s restorative justice program is atypical in that it's run entirely through a prosecutor's office. Cases are not referred to an outside organization to adjudicate, but internally, to a restorative justice team that has been in operation since 2016. (There are outside community organizations that also engage in restorative justice work in D.C., and have for many years.)
"A lot of the giants in this field feel very uncomfortable with this model" because it's run by the prosecutor's office, says Seema Gajwani, special counsel for juvenile justice reform in the OAG.
But one of the benefits of doing it this way, according to Gajwani, is that the program is altering the way prosecutors look at their own work.
"I think it's really changed the culture of prosecution in this office. It's propelled prosecutors to think more broadly about crime and conflict," Gajwani says. "That's something really powerful that can only happen when you have the program in-house in a prosecutor's office."
For Stacy, the decision to participate in a restorative justice conference with her daughter's assailant wasn't a difficult one.
"What convinced me to go with it is, I'm open for understanding. I understand that a lot of times, children make wrong decisions, and we're so quick to throw them in the system," she says. "And I just felt like maybe this will be a lesson learned not just for the one who did it but also for my daughter as well."
The conference followed a standard structure: the victim and the accused were both present, along with a parent or guardian for any minors involved, a restorative justice facilitator from the attorney general's office and a few other adults, often including an uninvolved prosecutor or a police officer involved in the case. The facilitators went in with a plan and a list of questions for discussion. (During the coronavirus pandemic, many cases are stalled as courts are remotely hearing only certain emergency cases.)
And the victim knew she could ask the accused to take responsibility for her actions. That can mean an apology and monetary restitution, but it can also mean an agreement to improve their own lives, by committing to community service, a jobs program, or better school attendance.
The girl sitting across from them in the circle that day was directly responsible for physical injury and emotional trauma to Stacy's daughter. But after hours of conversation, Stacy says what she saw in front of her was a confused girl who lacked support from her mother. Stacy also felt that she saw true remorse—at several points, the other teenager stopped speaking to weep.
"At the end of the session I embraced her and I told her, you know what, l'm not angry with you. I'm not angry with you," Stacy says. "I'm just hoping that you understand that this is not something you can do to people."
In the end, Stacy and her daughter asked her assailant to attend regular meetings with a mentor, do a small amount of community service and adhere to a curfew. Stacy still checks up on her with the restorative justice facilitator. "So far, from my understanding, she's doing great," she says.
And Stacy's daughter?
"After the entire session, she felt good. She was glad we had the circle, because she was able to say how she felt," says Stacy. "Maybe [all kids] need that, just sitting and talking about how they feel. Because a lot of times kids feel like nobody listens to them."
Since the rollout of the restorative justice program in 2016, there have been 118 successful conferences in the D.C. Attorney General's Office (the number of cases referred to restorative justice is about 6% of all prosecution cases in the office). At last count, 85% of victims who were offered the restorative justice option chose to take it, per the office. And preliminary analyses show a 15% reduction in the recidivism rate for youth who undergo restorative justice, rather than being prosecuted in the traditional manner.
But not every conference works out.
Seven cases have so far been returned for prosecution after the young person involved did not show up to the restorative justice conference, or after an unsuccessful conference (meaning the parties were unable to reach an agreement that satisfied everyone).
Aaron Rudolph's case is among those that, on its face, failed. Rudolph is a police officer with the Metropolitan Police Department who, in 2017, suffered a severe injury while trying to arrest a teenage boy on a warrant. He participated in a restorative justice conference with the teenager, and set only one condition for their agreement: that the boy would meet with him 12 times in the course of a year.
The teenager met with him only twice. His case was referred back to prosecutors, who charged him with a felony.
"I talk a lot about, how do we classify this? Was this a failure?" Rudolph asks.
Ostensibly, the conference didn't achieve what it was supposed to: the juvenile who participated was sent straight back into the criminal justice system, and he later picked up other serious charges.
But Rudolph says that, as he sees it, there are some important ways that the conference was an improvement over what would have happened had the teen's case been referred immediately to prosecutors.
"The first thought I had was, this is the first time that this young man chose the outcome of something. He signed his name and he picked something, and he chose not to fulfill it," Rudolph says. "I think the biggest benefit to restorative justice or something similar is people taking responsibility and choosing outcomes, as opposed to having the mentality that 'this thing is being done to me [by the courts].' He's young and he didn't make the greatest choice, but hopefully, maybe, he realizes that he's the one who picked it."
Rudolph also hopes that it prompted reflection that might have an effect on the boy's life later on down the line.
"I think on the one hand, it's probably impossible to answer, right? Because I can't like peer into his soul to see if he's been altered for the better," Rudolph says. "But I think it takes time. Will I know in the next six months if it worked? Maybe not. Will I know 10 years from now? Maybe."
Moreover, Rudolph says, there is the very relevant matter of the benefit to victims — that is, himself and his family.
"Sometimes victims kind of get pushed to the wayside and the focus becomes on how much or how little punishment should the offender get, which is an important aspect of the criminal justice system, but that's not the only thing," he says. "There's a large chance or a good chance that restorative justice can help offenders, but there's a much better chance that it will also help the victims who confront them. Not necessarily negatively confrontational, but just to be in front of them and not feel powerless."
During his arrest, the teenager in Rudolph's case had yanked the officer forward with enough force to send him flying face-first into a parked bicycle. The handlebars had slammed into Rudolph's left eye socket, fracturing the bone in two places and rendering him blind in that eye for months.
Rudolph says he himself never felt angry or fearful — he blamed himself for getting caught off guard. But he says the conference was deeply healing for his wife, who came away with a new compassion for the teenager and a sense of closure around the entire ordeal. "Restorative justice, I think, kind of addresses the multifaceted healing process that's necessary for any crime, or any harm done," he says.
Gajwani agrees that restorative justice conferences can be powerfully transformative for victims.
"Victims have questions they want answered. Why was I targeted, what did you do with my stuff, what would you have done if I fought back? They want to gauge for themselves if the person is truly remorseful. They want the ability to talk about how they were impacted," she says. "All of that they get from restorative justice, and virtually none of it they get from a traditional prosecution."
The restorative justice program in the D.C. attorney general's office is still in its infancy. And prosecutors and others still have doubts about its usefulness across a broad array of cases.
"I think this is a great concept, and I think it works great in certain cases," Zachary Terwilliger, the U.S. Attorney for the Eastern District of Virginia, said at a recent panel about restorative justice at the National Law Enforcement Museum. Throughout his career, Terwilliger has prosecuted cases against alleged human traffickers — cases that have convinced him not every offender is a candidate for rehabilitation.
"I've dealt with what I feel is evil incarnate. If you look into the eyes of a 23 or 24 year old that is literally selling people, they not only deserve to be punished," he said. "They've lost a right to be a part of this society."
What's more, Terwilliger said, some people simply won't be rehabilitated, whether they're given leniency or not. "By the time people get to me in Virginia, they've had four or five runs through the state system. They've had umpteenth chances," he said. "There's a place for restorative justice ... but I don't think it can be a one size fits all."
D.C.'s restorative justice program does not take every kind of case. It mostly takes on cases involving juveniles, whose brains, studies show, have not fully matured. Advances in child development science have shown that "planning, working memory and impulse control" are some of the last functions to develop, perhaps taking until a person's mid-twenties to be fully formed, according to scientific research. For that reason, a series of Supreme Court decisions over the last 15 years have held that it's unconstitutional to dole out severe punishments — like the death penalty or mandatory life without the possibility of parole — to juveniles.
The program also declines to take any cases involving guns or intimate partner violence, where abusers might have the ability to further manipulate their victims, according to Gajwani, the special counsel who heads up the program in the OAG.
The program is part of a larger trend in the District of Columbia — and elsewhere around the country — to approach juvenile justice differently. Several D.C. councilmembers pushed last year to pass the Second Look Amendment Act, which allows people who were under the age of 25 when they committed their crimes to petition judges for a resentencing after serving 15 years (the council did not vote on the bill in the last legislative session). The Incarceration Reduction Amendment Act, passed in 2017, already allowed for inmates to have their life sentences reconsidered if they were convicted as minors.
While it's in line with trends, the OAG's restorative justice program continues to be unusual in structure: the program is inextricably intertwined with the District's top prosecutor for juvenile crimes.
Per Gajwani, there are very specific—and very meaningful—benefits to this arrangement.
She cites an example that she says is illustrative of broader problems with prosecutor's offices more generally. Earlier this year, Gajwani told DCist, the OAG caught wind of a case in which a young person received a light punishment for a minor charge, and then three weeks later got charged with a more serious crime. The news was a heavy blow for the prosecutor who tried the case, she says.
"And I started thinking, this is a systemic problem with prosecutors' offices. They only see failure," she says. "They could have responded leniently to 35 other cases and those people could have touched the system, bounced off, and been fine, and [the prosecutor] would never know about that ... one single instance where somebody goes out and commits a serious violent crime after getting a more lenient sentence chills the entire office."
The incentive to keep that from happening can begin to make even the most progressive-minded prosecutors more punitive over time, Gajwani says. "Prosecutors look around and they only see risk," she says. "They don't get to see hope and compassion."