Criminal justice reform will require a good deal of experimentation as we move from public safety models that for centuries have focused on incarceration. Today, we examine the challenges involved in applying restorative justice principles to protest and destruction of public property, such as what occurred in Santa Fe (obelisk) and in cities across the nation in relation to George Floyd protests.

Minor Mea Culpa. Last week I reported on the series Rotten, but I mistakenly said it streamed from Hulu. We’ve been doing so much Netflix and Hulu streaming I jumbled that reference. It is available online streaming from Netflix, so no subscription needed and the highest recommendation stands. Sorry.

Public Power in Maine & NM: The Possibilities, the Process, the Reasons

First, the recording of Thursday’s Public Power (publicly owned utilities) webinar discussion with Maine advocates Vaughan Woodruff and Bill Dunn, Renewable Taos advocate Bob Bresnahan, and New Energy Economy attorney Mariel Nanasi.

Can Restorative Justice Work for those Arrested for Destruction of Public Property During Civil Rights Protests?

Devin Bent is a regular reader and frequently sends me emails with input and suggestions. On Monday, he sent me a note with the quote below from a recent op-ed by Milan Simonich in the Santa Fe New Mexican, “DA Says Closed Door Meeting of a Few Is Justice for All.”

“The way police and prosecutors have handled mob violence on the Plaza raises another question: If Cowboys for Trump or the Proud Boys went on a rampage and destroyed public property in Santa Fe, would they be candidates for restorative justice and receive light punishment?”

Santa Fe New Mexican, “DA Says Closed Door Meeting for a Few Is Justice for All.”

Devin’s email went on to state: “Perhaps an even better question: Those who trashed the Capitol in an attempt to overthrow democracy and injured 140 police officers, would they be eligible for restorative justice and what would it look like?”

I have to say, his question gave me pause and I mulled it for some time. I had been a strong advocate for restorative justice in the obelisk action. Most progressives, myself included, would have been appalled had those arrested for actions in the Capitol faced only the need to meet with some folks who felt the election was fair and that destroying the Capitol was wrong. Why the difference in perspective?

It didn’t take terribly long to note a few very important differences between the obelisk and Capitol incidents.

1. Those who pulled down the obelisk were not threatening democracy or people with violence.
2. Those who pulled down the obelisk were not armed.
3. Those who pulled down the obelisk do not pose an ongoing threat to the functioning of democracy. Although I’ll admit, it wouldn’t surprise me if anything named after or in the likeness of Kit Carson met a similar fate sometime soon.
4. There is a national and very popular movement, often supported and implemented by state or local governments, that believes our nation should remove historic monuments that offend large segments of the population. Just last week three historic monuments were removed in Charlottesville, Virginia. First, the Robert E. Lee statue at the center of the Charlottesville protest that ended in the death of 32-year-old activist Heather Heyer was removed. Later that same day a statue celebrating Andrew Jackson was removed, followed only hours later by the removal of a monument to Lewis & Clark. Go here to read more. Removal of offensive historic monuments have been effected in communities across the nation, albeit through legal processes.
5. In Santa Fe, in June 2020, Mayor Webber ordered the removal of three historic monuments, and one was removed that day. But the Kit Carson obelisk outside the federal building remains in place over a year later. The third monument, the obelisk in the Plaza, had not been removed four months later. In the absence of any further updates on when the obelisk would be removed, Indigenous People’s Day protests focused on the obelisk. When promises go unfulfilled, in a context of thousands of ignored promises, frustration can boil over, a topic of last Thursday’s post.
6. There is a significant divide in our community about the status and place of such monuments and restorative justice is intended to open the door to communication about that divide, its roots, and the impact on all segments of those communities. While I could see the point of some form of restorative justice conversations about monuments at a national level, I think restorative justice is much more likely to be effective at a local level….and, to be honest, the thought of some kind of civilized, fact-based dialog with the Proud Boys seems quixotic at best.

But for a restorative justice process to contribute to healing a community, it can’t be shrouded in secrecy, as Santa Fe’s obelisk process is being conducted. In another Simonich article on the mediation process, the facilitator of the process was aghast that her phone number had been shared with the media, saying that it was the first time in 30 years she had been “outed” by a client. She also stated that the conversations conducted in the process were entirely confidential, with participants not even able to take notes from the room.

While such a process may help achieve some level of shared understanding between the defendants and eight members of the community, I am holding my judgment on how a memo from the arbitrator can achieve anything like community healing.

Before coming to NM, I had some experience securing federal grants for criminal justice agencies in the Bay Area, with funding sought to implement or expand restorative justice programs. My recollection, however, was that in all these instances the restorative justice effort was focused on crimes in which there were clear perpetrators who directly violated specific victims. I poked around a bit and found the following from the Hartford Community Restorative Justice Center. The four statements below define the purpose of restorative justice, how it works, under what circumstances, and with what outcomes sought.

“An opportunity to make it right: People who offend have the opportunity to express remorse and apologize for their actions, benefiting themselves as well as their victims.

A way to put the incident behind them: People who offend have the opportunity to make significant and appropriate amends and then move on. They are able to return to their communities knowing that the matter is settled.

A timely resolution: The process of restorative justice is swift in comparison to the criminal justice system, so that offenders can more quickly make meaningful changes in their lives.

A high success rate: Restorative justice has a high rate of compliance or completion. Within a voluntary and non-coercive process, people who have offended tend to follow through on agreements that they have a part in creating.”

Reflecting on my experience in the Bay Area, the programs for which I helped secure funding had a similar scope. Typical participants were individuals who stole someone’s car, broke into their house, or robbed their store — instances with clear perpetrators and victims and where it is reasonable to think that the perpetrator, once hearing the impact of their crime on the victims, might feel remorse. In these instances, there would not be a community that was directly impacted or in need of healing or achieving a more empathic understanding of a broad community divide. The situations are very different. And the data is clear that when applied to the kind of situations with clear victims and perpetrators, the process both facilitates healing, but quite often results in perpetrators repaying the victims directly for the damages incurred. But again, these were largely one-to-one, personal situations.

I dug a bit further, however, and found that Philadelphia, Seattle and other communities were indeed turning to restorative justice processes in relation to protesters who had been arrested during the Black Lives Matter protests over the past year. A couple of examples:

In Seattle. Those arrested in protests over the slaying of George Floyd will work under the supervision of criminal justice reform organization, CHOOSE180, where they will be offered community service opportunities to work within organizations that are working to achieve racial justice and criminal justice reform — a different kind of restorative justice program.

In Philadelphia, the Philadelphia Inquirer reported that five hundred individuals arrested during George Floyd protests will be referred for restorative justice rather than face trial. Here, even those charged with destroying ATMs or renting U-Hauls to haul the spoils of looting will be offered restorative justice. From the Inquirer:

“Retacco said those being considered for the restorative response were accused of conduct like fleeing Rite Aid with “a lot of makeup,” being inside a closed GameStop, running a “human assembly line” passing merchandise out of a Walgreens, and being caught in a closed Snipes sneaker store with more than 100 other people, many of whom escaped. The damage recounted in court was dizzying: seven Foot Lockers that were cleared out and lost millions of dollars, $800,000 in losses from the clothing retailer Live in Color, and numerous stores that never reopened after the unrest.”

Philadelphia Inquire: “Hundreds arrested in Philly uprisings may avoid prosecution through restorative justice”

My take from all of this is that restorative justice was created to bring healing in very specific situations and that we are now attempting to adapt that process to other contexts. Due to the differences in circumstances, adjustments will need to be made and we will have to learn from the successes and failures, both of which are likely. That is what happens when model programs are adapted to other contexts.

I am most eager to see what transpires here in NM in relation to the obelisk. Based on the articles from Simonich, and even more so from the often vitriolic comments that follow his articles on this, I am not terribly optimistic. I feel that some kind of broader public conversation will be needed, perhaps a series of well-facilitated pubic forums, followed by a collaboration among stakeholders in the design of a permanent museum display with an overt educational purpose, one that celebrates the many ways in which our cultures cohere and placing in historic context the times where conflicts have created great injustices and suffering.

But that is another post. What do you see as a healthy, healing resolution to this conflict?

In solidarity and hope,

Paul & Roxanne

Categories: Criminal Justice & Public Safety

Tags: Black Lives Matter, Featured, George Floyd, Hispanic, Indigenous, New Mexico, obelisk, read more, restorative justice