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OpEdNews Op Eds    H1'ed 7/17/13

Restorative Justice for Trayvon Martin

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Mikhail Lyubansky
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This article is a modified excerpt from the Special Issue on Violence Against Individuals and Communities: Reflecting on the Trayvon Martin Case, in the Journal for Social Action in Counseling and Psychology. Read full article.

Fifty-eight years ago, in 1955, fourteen-year-old Emmett Till was slain while visiting his relatives in Mississippi. Till's murder (and the consequent acquittal of Roy Bryant and his half-brother J. W. Milam) sparked outrage throughout the Black community and is widely considered to have been a catalyst for the Civil Rights movement.

Is there another road to justice for Trayvon? by Creative Commons

Today our country is again reeling from the impact of a young Black life lost and a criminal justice system that, in the eyes of many Americans, has not only failed to produce a just outcome but has yet again affirmed that racial bias is deeply embedded into our supposedly unbiased system.

In an earlier article in a peer-reviewed academic journal, I described data from Illinois, New York, and Los Angeles that, in the words Ayres and Borowsky (2008) show "prima facie evidence that African Americans and Hispanics are over-stopped, over-frisked, over-searched, and over-arrested." In that same article (and in this shorter blog post), I also describe and summarize some of the research on implicit (or unconscious)  bias that I believe is the primary cause of the racial profiling data and many other racial inequities in the justice system. In my view, this is a critical body of work because it shows that racism (as determined by racially biased outcomes) is not necessarily perpetrated by racists (those who explicitly endorse prejudicial attitudes or value one racial group more than another).  

The literature on unconscious bias provide us with one valuable strategy for how we might move forward -- mandatory training for law enforcement officers about how to identify and override such bias -- but a systemic issue also requires a systemic response, and while changing the way law enforcement officers are trained can produce significant change within the criminal justice system, I want to focus here on an entirely different systemic response to conflict and injustice.

As I wrote in the Journal for Social Action in Counseling and Psychology (Lyubansky, 2013), "We may not literally follow the Biblical edict of "an eye for an eye", but justice in American society (and in Western society more broadly) is generally based on the notion that "the punishment must fit the crime". So dominant is this punitive/retributive paradigm in our society that even those who have reason to distrust our contemporary approach to justice, have a hard time imagining doing justice any other way. There is, however, another paradigm, a restorative one".

For several years now I've been intrigued by the potential of one particular restorative practice, Restorative Circles (RC), a system originally developed by Dominic Barter and his associates in the Brazilian favelas, which often don't have access to the infrastructure of the formal criminal justice system.  Unlike the conventional justice system, which focuses exclusively on the person identified as having potentially broken a law, the RC process seeks to create a system which values and attempts to address the needs of all those who were either directly involved or impacted by what happened. Thus, in the case of Trayvon Martin's death, the RC process would bring together not only Zimmerman and Martin's family but likely a large group of community members who also feel impacted.

Though RC and other restorative justice practices are still unfamiliar to most Americans, Restorative Justice is an international movement that is increasingly becoming the normative response in many parts of the world. The United States has been slower to adopt restorative practices, especially in criminal cases, but here, too, restorative responses are starting to gain traction, as in this recent homicide case covered in the New York Times (see Tullis, 2013). Thus, a recent restorative response to a fatal shooting in Seattle involving the police can provide a window into how communities can handle conflicts, including those that result in a death, with both accountability and compassion and in a way that creates conditions for healing.

Andrea Brenneke, the attorney originally hired to represent the victim's family, described the original Seattle incident, the audio of which was captured by a squad car's camera

On August 30, 2010, a Seattle police officer shot and killed John T. Williams, a First Nations wood carver, while he was walking down a sunny downtown street with the tools of his trade -- a piece of wood and a small carving knife. The officer got out of his car, walked toward Mr. Williams with a drawn gun, and yelled three times to "Put the knife down!" Seconds later, he fired four times, killing him. The officer later testified he felt threatened by the knife. (Brenneke, 2012)

While the Williams case did not garner the kind of national media attention that the Martin case has, it was widely covered by the Seattle media and the resulting local racial tension and division was quite pronounced.  The weeks that followed the shooting saw emotionally charged protests and demonstrations and community meetings filled with expressions of grief and anger. In part because the Williams shooting was just the latest in a series of interactions in which Seattle police officers used deadly force against members of minority communities, the incident sparked widespread outrage, revealed cultural misunderstanding, and exposed a lack of trust between the police department, and both the Native American community (and its allies) and other economically marginalized communities. For many civilians, the Williams shooting was part of a pattern that increased a sense of vulnerability and lack of safety with the police. On the other side of the divide, many police officers were themselves on edge, anxious about their own vulnerability and safety after two Seattle police officers were shot and killed while parked in their marked car, targeted simply because they were police (Brenneke, 2012).

Those mourning Trayvon Martin's death are not the only ones yearning for justice by Creative Commons

The case seemed destined for years of the usual antagonistic and divisive criminal and civil proceedings when Andrea Brenneke, the attorney who was to represent the family in a civil suit, proposed something radically different, a Restorative Circle involving Williams's family, the police department, and members of the community impacted by what happened.  After presenting this option and getting permission to proceed from Williams' family, Brenneke approached the police department. As she later wrote, "Faced with community outrage over a problematic shooting that would require a lengthy investigation process, Chief Diaz embraced the invitation and a cutting-edge approach that would provide him and the Seattle Police Department an immediate opportunity to address the pain and issues involving the family and the larger community" (Brenneke, 2012).

Though in this particular case, Chief Diaz and other members of the Seattle Police Department chose to participate in the restorative process, open-hearted participation by police (or any other party) is not essential to such a process taking place. Sometimes, those who wear the hat of legitimate authority (e.g., law enforcement officers, judges, parents, teachers) choose not to participate because they are reluctant to let go of the need for control. Other times, it is those who were harmed who refuse to participate, because doing so does not feel safe or because they are only able to focus on punitive outcomes. In still other times, as in this case, it is those who did the harm that choose not to participate. In all three circumstances, initial refusal sometimes turns into willingness, but even if does not, the process moves forward, as it did in this case, as long as there are those who want to engage in this manner.

To those unfamiliar with restorative practices, a process such as RC may appear idealistic, naà ve, and irresponsible. After all, it intentionally rejects the two core aspects of conventional approaches: the assignment of blame and the administration of punishment. As Lyubansky and Barter (2011, p. 39) point out, "We have become so accustomed to punishment as synonymous with justice that sometimes it is only through a direct, non-satisfactory experience with the retributive justice system, or direct, positive experience of a restorative process, that we come to see how limited a substitute the retributive system is for what those that experience themselves as victims say they seek: demonstration of self-responsibility, regret, and healing action by those whose acts they associate with their pain."

At the heart of the RC process is a dialog model, but it's a decidedly different type of dialog than people usually engage in, and it's not just dialog. The RC process is designed to lead to voluntary acts offered to repair or restore the relationship. The words repair and restore are not synonymous. Reparative acts have to do with compensation -- paying for a broken window is a reparative act -- while restorative acts are those whose value is largely symbolic, a heart-felt apology may qualify, or a basket of vegetables from one's garden, or an invitation to dinner, or a job offer. It's certainly not surprising that people prefer to have both, but when only one is possible, there is often a strong preference for actions that have a restorative purpose.

In the context of fatal shootings, it might seem that restorative actions are the only ones possible, and even that to a very limited extent, but this assumes that the only harm done is to the deceased. This is unlikely. Though the deceased and his or her family are the most obvious "victims" and are likely dealing with the most pain, incidents like the Williams and Martin shootings typically create ripples of harm that reach far beyond the obvious target. In the case of Williams, it is clear that both the native-American community and the police department felt that they were harmed by the incident.

The Restorative Circle in Seattle was held September 13, 2010.  It lasted over three hours and was held at the Chief Seattle Club, which Brenneke (2012, When People In Crisis Meet in Sacred Space section) described as "a sacred space designed for traditional Native American healing circles." Brenneke (2012) described the Circle and its outcomes in Tikkun Magazine:

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Mikhail Lyubansky, Ph.D., is a teaching associate professor in the Department of Psychology at the University of Illinois, Urbana-Champaign, where he teaches Psychology of Race and Ethnicity and courses on restorative justice.

Since 2009, Mikhail has been studying and working with conflict, particularly via Restorative Circles (a restorative practice developed in Brazil by Dominic Barter and associates) and other restorative responses to conflict. Together with Elaine Shpungin, he now supports schools, organizations, and workplaces in developing restorative strategies for engaging conflict, building conflict facilitation skills and evaluating the outcomes associated with restorative responses via Conflict 180.

In addition to conflict and restorative (more...)

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