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 Abstract

Excerpted From: Olivia Dana and Sherene Crawford, Restorative Prosecution? Rethinking Responses to Violence, 64 New York Law School Law Review 53 (2019/2020) (56 Footnotes) (Full Document)

A growing number of criminal justice reform proponents argue that our nation will continue to engage in mass incarceration if we do not grapple with the current approach to violent crime. But the need to explore non-carceral responses to violent crime is a tough sell for many, especially prosecutors, to whom incarceration frequently seems the best way to ensure community safety. Thus, even most of the recently elected progressive prosecutors nationwide have focused their reforms on low-level, nonviolent crimes. These progressive prosecutors, mostly serving large urban communities, have offered up an array of reforms. Still, the old “tough-on-crime” approach continues to impact how even the most progressive prosecutors address cases involving violence. Put simply, there is relatively little being done to change our legal system's response to acts of violence.

This article offers an alternative way for prosecutors to reframe both their role within the criminal justice system and their approach to acts of violence. Specifically, this article suggests that prosecutors utilize restorative justice, viewing each single criminal act within the complex universe of defendant, victim, and community. The mandate of prosecutors would then go beyond protecting the public, to encompass healing, growth, and community health. Victims of violent crimes would have increased opportunities to be heard and those who committed these crimes would be offered meaningful pathways toward repair. Restorative justice could serve as a path leading away from incarceration, and as a force pushing prosecutors to rethink both their role within the system and their responsibility to the communities they serve.

Part II of this article examines the mandate of prosecutors and explores opportunities to transform prosecutors' self-perceptions of their role in criminal justice reform.

Part III discusses the use of restorative justice practices within the criminal justice system, highlighting the Red Hook Community Justice Center in Brooklyn, New York. We argue that by using restorative justice, prosecutors' responses to defendants, victims, and the community, are significantly altered, producing a far better result for all concerned.

Part IV focuses on violent crimes and restorative justice. We conclude by affirming that any effort to end mass incarceration requires a changed approach to cases involving violence.

[. . .]

Restorative justice can provide a profoundly meaningful opportunity for prosecutors to more wholly fulfill their mandate of “doing justice” and to truly embody what it means to stand and state their name “For The People.” As progressive prosecutors attempt to take on criminal justice reform, restorative justice offers a path forward, as well as a means of handling violent cases, and complements the reforms they are already carrying out for lower-level, nonviolent cases. Society needs policy and practice changes that trend toward evidence-based, trauma-informed, and individualized approaches to violence. This is the only chance to put the brakes on the runaway train that is mass incarceration today.

Prosecutors today are rarely asked to consider what will happen when the people whom they have recommended for incarceration return to their communities. Restorative justice offers an opportunity for prosecutors to include that consideration in their decision-making. Restorative justice is a promising pathway to reforming how we deal with violence in our communities, both as an alternative to incarceration and as a catalyst for changing the way prosecutors view their responsibility toward the many people who are impacted by a criminal act. This practice not only transforms the outcomes of individual cases, but also aids prosecutors to better understand the communities they serve.

Olivia Dana is Deputy Director of Research-Practice Strategies at the Center for Court Innovation, which seeks to improve the justice system's response to both defendants and victims, as well as to promote racial justice.

Sherene Crawford is the Associate Director of Criminal Justice at the Center for Court Innovation where she provides strategic planning and support to the Center's court-based work throughout New York City.

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