Getting Restorative Justice Approved By Your State Political Body Is Worth the Trouble

It is becoming increasingly clear that diverting individuals from the juvenile justice system, which is consistent with public safety and still holds offenders accountable, is generally a best-practice concept. This can have a significant impact on public safety by increasing successful life outcomes for young people. A crime prevented is far better than a crime successfully adjudicated.

Having spent my career in the juvenile justice field and now serving as a Virginia state senator, I have gone through a complete metamorphosis in my thinking on how best to deal with juvenile delinquency. Throughout most of my career, my efforts involved laying out ground rules for youngsters on probation and holding them accountable to those expectations while trying to help them through counseling (individual, group and family), changes in their education platform or opportunities for placement in residential treatment environments.

Mostly, I was in the lesson-teaching business, which I now believe to be a simplistic and largely unhelpful approach to changing behavior and providing public safety. I should have been focused on providing them with skills and better capacity to deal with their circumstances.

The best information regarding what works in changing the behavior of delinquent youth is to keep them out of court and out of placements. To this end, restorative justice programing can be a very effective tool that can be used by courts, police and communities to offer an alternative to the court appearance, investigation and probation that has been traditionally offered. Restorative justice is defined by the Center for Justice and Reconciliation as:

“A theory of justice that emphasizes repairing the harm created by criminal behavior. It is best accomplished through cooperative processes that include all stakeholders which can lead to the transformation of people, relationships, and communities.”

In the 1980s and 1990s, the Norfolk, Virginia, Court Service Unit began to use restorative justice as a means to deal with their probation clientele. While this certainly had benefits, the impact and effectiveness of restorative justice could have had greater impact by using it as a diversion from traditional court/probation services. It brings all parts of the criminal justice system and the community together in an effort to focus on the child instead of the fulfillment of traditional justice system roles and responsibilities, which can take a protracted amount of time and be very frightening and confusing for low- to moderate-risk offenders.

Fairfax County, the county I represent in the state General Assembly, has introduced restorative justice into the diversion process. Virginia General Assembly authority was required to allow sharing information among the Fairfax County Juvenile and Domestic Relations District Court, Fairfax County Police Department, Fairfax City Police Department, Fairfax County Schools, Northern Virginia Mediation Service, Fairfax County Neighborhood and Community Services and other county agencies and nonprofits.

But it was not easy! The first time I introduced this legislation I was not aware that restorative justice was viewed negatively in the Virginia House of Delegates Courts Committee. While the measure moved easily through the Senate, this committee killed the bill based on a previous restorative justice effort that failed in the adult sector.

The following year we got the bill through with a different bill patron and no mention that it was a restorative justice program. Never underestimate the difficulty in obtaining legal authority just because something looks like a no-brainer. Titles and words matter. These efforts were a necessary step in authorizing Fairfax County to determine who was appropriate and eligible for the program.

These agencies are using restorative justice conferencing techniques as a:

• Proven approach to reduce the number of youth who are court involved and have criminal records;
• Hold youth accountable for their actions without exposing them to risk factors with having a criminal record;
• Create appropriate, incident-specific responses for each case;
• Reduce reocurrences of criminal acts by youth; and
• Provide support for victims to participate in identifying how their harm is addressed.

The program focuses on critical issues including:

• Reoffense and recidivism of harmful criminal and discipline acts;
• Minority over-representation of youth in criminal justice and disciplinary proceedings;
• Community stakeholder harm from youth crimes; and
• Victim impact.

Restorative justice used in this way brings county agencies, nonprofits and families together in responding to unacceptable criminal behavior in ways that improve a child’s opportunity for a better life outcome. Diversion gets services to kids quickly and sends a positive message to the child that he is not inherently bad but has made a mistake that can be rectified in ways that meet the goals of public safety, education and rehabilitation.

What I find most interesting in this diversionary restorative process is that it provides better mechanisms for police to have a role in ensuring future public safety, provides schools with an opportunity to avoid zero tolerance policies and maintain youngsters in their education process, and allows courts to focus on more serious offenders while allowing the community to deal with lower-risk youth.

For years police officers were taught they should just write up the charge but not judge it. What we are now asking officers to do in Fairfax is to have a role in screening and diverting offenders and reinforcing with them the notion that this is evidence-based crime prevention that improves the odds of a youth not reoffending.

I often joked with people during the legislative process that led to authorizing this in Fairfax County that the hardest thing for decision-makers in this process was to resist the urge to teach a sulking, smirking or indifferent child a lesson through detention or a court appearance and exercise what we now know is a best practice by minimizing that child’s penetration into the justice system. A court appearance and further disciplinary action is always available if restorative justice is unsuccessful.

Having our communities respond to the needs of our young people with timely, informal and best-practice alternatives to juvenile court is the growing wave of the future. This, combined with the use of structured decision-making instruments that help determine service needs and level of risk at the time of arrest and detention, can only lead to better decision-making and better outcomes.

Preserving the dignity and self-worth of youngsters in ways that are consistent with public safety can only lead to fewer young people leading criminal lifestyles. This is a less costly and more efficient means of responding to delinquent behavior than expensive court processes that lead to counterproductive residential care. Let’s keep moving in this direction.

Dave Marsden served as a probation officer, group home director and secure juvenile detention superintendent in Fairfax County, Virginia from 1970 to 1999. He was chief deputy and acting director of the Virginia Department of Juvenile Justice from 2000-02 and also worked at the Development Services Group Inc. He has served in the Virginia General Assembly in the House of Delegates from 2006-10 and the state Senate from 2010 to the present.