When police rounded up the young offenders who broke into Marsha Berman’s house, they did what the Supreme Court has required police officers to do for nearly four decades. They read the accused their constitutional rights: “You have a right to remain silent. Anything you say can be used against you in a court of law...”

But when police arrived at Berman’s house to inspect the damage, of course they didn’t recite her “rights” as a burglary victim. If they had, the speech might have sounded something like this:

“You are a crime victim. In addition to your initial loss to the offender, you have the right to lose wages as a result of meeting with prosecutors and appearing in court, often through several delays. You can also expect to pay out-of-pocket expenses such as babysitters, transportation, and parking. You have the right to experience emotional and psychological trauma from having to confront an offender or endure a defense attorney’s questions. You can anticipate a process frequently marked by bureaucratic indifference and the need to repeatedly tell your story. You may even be targeted for retaliation if the perpetrator is unsuccessfully prosecuted or only briefly confined assuming successful prosecution. In short, you have the right to feel marginalized and re-victimized at every stage of the criminal justice process. Keep in touch.”

This distressing scenario is all too common in our criminal justice system, with its primary focus on the use of publicly imposed punishment to make criminals feel the brunt of the harm and injury caused by their crimes. Yet if only by omission, this approach fails to remove harm and injury from victims and communities. According to surveys by the U.S. Department of Justice, Bureau of Justice Statistics, victims report less than 60 percent of all Index I crimes – murder, rape, robbery, aggravated assault, burglary, larceny, and auto theft. Most crimes reported never get investigated, only about 20 percent are cleared by arrest, and many of those are not prosecuted. Moreover, most stolen property is never recovered.

A growing movement believes there’s a far more effective way to deal with crime – by shifting from retribution to restitution. Proponents of “restorative justice” say it’s time to begin focusing on restoring the losses suffered by victims, holding offenders accountable for the harm they have caused, and building peace within communities. Though a departure from current practice, this “new” approach is actually based on methods of conflict resolution that far predate our current criminal justice system.

Anglo-American criminal law was fashioned by kings, yet many of today’s crimes were illegal before the dawn of criminal law. Each Anglo-Saxon freeman’s dwelling had a “peace,” and individuals were harmed or property rights violated, the peace was broken and the wrongdoer required to pay restitution. Efforts by victims and their families to collect restitution were supported by community members who joined in pursuing and prosecuting the violator. Neighbors understood that they might need similar defense some day themselves. If accused lawbreakers were found guilty, they were forced to pay restitution. Those who refused were considered outlaws (outside the protection of the legal system) and the victims and their allied communities were free to take up retribution.

Over time, kings got wise to the legal process as a potential source of revenue, and began claiming more crimes as violations of the “king’s peace” – that is, the peace of the king’s house. Gradually their peace included churches, monasteries, bridges, highways, special events; in short, wherever kings traveled. As more and more fines went to kings rather than victims, conflicts increased between the older restitution-based system and the king’s law.

As victims’ rights to restitution were reduced, villagers lost the motivation to maintain voluntary measures for pursuit and prosecution. But criminals didn’t stop doing their thing, and powerful groups demanded protection. Today’s tax-supported criminal justice system emerged because private incentives to apprehend scofflaws were undermined when victims eventually lost all rights to restitution.

On a Monday afternoon last March, Marsha Berman called her live-in partner from work and they agreed to meet at the home they share in Santa Rosa, California. When she walked in and saw muddy footprints from the living room to the kitchen and up the stairs, she wondered what her usually thoughtful man could have been thinking. But his car wasn’t there, and it was only when she saw the drawer to one of her tables thrown open that she realized she had been robbed.

“I felt so hurt, so shocked, so incredibly violated,” Berman recalls. “You don’t know right away what’s missing or not, you only know your life has been turned upside down, inside out.” The burglars had gone through the whole house, being reckless enough to leave full hand prints on bathroom mirrors. The following day, Berman got word that there had been bragging at a local school. “Names were passed to me and I called the police back,” Berman says. Four students were arrested for residential burglary.

“That’s when I got outright angry. I wanted to shout at the kids: How dare you think what I have in my house is yours to palm off for what you can get for it? You have no idea how I felt, what my personal belongings mean to me.” Berman felt possessed to get the kids to face her, to find out who they were and why they had done this to her. “I was distraught in a way that isn’t like me – losing sleep, breaking into tears, looking at every kid in the neighborhood and feeling suspicious.”

When a friend gave her brochure describing an innovative approach to dealing with the impact of crime, Berman found her way to Restorative Resources, a Sebastopol, California non-profit group that works to allow community members – including those who have been harmed – to have a say in what solutions should like. She was surprised to find herself rapidly transformed from a one kind of victim “who just wanted all of this to go away,” to a different kind of victim “who felt ready and willing to be involved in making a solution that didn’t simply emphasize isolating offenders from society, but also focused on the needs of victims and communities, including my right to seek direct accountability from the people who caused the harm.” 

Jessalyn Nash and Janet Hughes cofounded Restorative Justice in 1998 because they had come to understand acts of crime primarily as acts against individuals and communities rather than simply violations of law. “It was clear to both of us that most people who move through the criminal justice system don’t find it a satisfying or healing experience,” Nash says. “Victims often feel re-victimized when the harm they have experienced isn’t recognized, while at the same time people who offend and their families often leave more broken and damaged.”

Through her work in residential group homes, Nash says she saw countless examples of juveniles beginning to go through a healing process – a positive behavioral change – and then slipping back into the old negative patterns as soon as they visited with their families at home. “In many cases, the family system was out of balance and the child was a trigger or flag for the imbalances in the family,” she says. “I wanted to see a more systemic approach in accountability and care which included the individual, the family and the community system.”

Through meetings with Nash, Berman felt validated by the precepts of restorative justice – especially the opportunity to meet with the offenders and discuss the crime and its aftermath. “I was furious at these guys for what they had done to me and my home,” Berman says. “But somehow I also knew that there were two faces to restitution. On the one hand, I expected the offenders to take steps to repair the harm they had caused, yet at the same time I realized they needed to be restored as well. I want these kids to get their lives together now, rather than head down the road of a lifetime of crime.”

Working closely with Nash and her Restorative Resources staff, Berman found a powerful ally in Sonoma County Superior Court Judge Arnold Rosenfield – an outspoken proponent of improving the criminal justice solution so that victims, offenders, and communities are involved, empowered, restored and satisfied, to the extent possible.

“It’s important to bear in mind that there’s no one-size-fits-all restorative justice alternative,” says Rosenfield. “Certainly a core principle involves working to restore those who have been injured. This can and does take a lot of forms.” Long before the restorative justice movement got underway, Rosenfeld was faced with a decision about how to sentence a defendant convicted of vehicular manslaughter. Rather than hit her with a big fine, he ordered the woman to pay $5,000 to a scholarship fund for children of victims of drinking drivers. “This decision got some notoriety at the time. I was already thinking in restorative justice terms but it didn’t occur to me to put a name to it.”

Berman participated in victim-offender mediation sessions with each of the four young men who burglarized her home. The aim of the encounters was to give everyone the opportunity to talk about the offense, and to begin reaching agreement on steps the offenders would take to repair the harm suffered by the victim and in other ways to “make things right.” Family group conferences — offenders with their parents and victims with their support — were also held, to further focus on issues of accountability and parental involvement. “In New Zealand I became familiar with the Maori people,” says Nash. “They believe that when a child is abused or gets into trouble with the law, the problem is not with the child alone. Rather, they see it as the family and the community being out of balance. The family and the community need to be involved in discovering what the underlying causes are that contribute to the youth's issues and help to uphold responsibility, provide support and restore balance.”

“After we all shared our feelings, asked questions and gave some input into what we wanted in the way of restitution, I left the room,” Berman recalls. “Then the youths discussed with their families and support people what happened and what the youths should do to restore the losses. Each of the youths proposed a set of concrete actions to address the harm and make things right.”

The exact agreements reached between Berman and each young man remain confidential, but these are what she calls “examples” of commitments to make restitution:

-I agree to 75 hours of community services with my church or 50 hours of support to Hospice.

-I will improve my grades by one grade point.

-I will not associate with the other offenders for one year unless they are in a class or attend a workshop that I am attending.

-I will not ditch class again.

-I will attend a Young Man's Ultimate Workshop for one weekend to learn what it means to be a man. 

-My parents will pay the victim's the money that they lost and I will work to repay my parents (or grandparents or who ever paid the victims).  Work may include yard work, house cleaning, painting, chores, etc.

-I will attend counseling with my family.

-I will write a letter of apology to the victim.

-I will keep a journal of everything that I am accomplishing in my contract.

-I will meet with the victims at the end of my contract or one year/ which ever is first, and tell them what I have learned and how this has affected me.

The judge agreed to the terms. If any of the youths fails to keep to the terms of the contract, he’ll find himself back in Rosenfield’s courtroom.

In 1982, President Regan’s Task Force on Victims of Crime recommended that restitution be required unless there are “compelling reasons” for not ordering it. In the past two decades, almost every state has enacted or amended restitution statutes. Even so, restoring victims remains, at best, a secondary objective of the criminal justice system.

“Unless legislation can somehow replace punishment with restitution as the primary goal of criminal justice, and create a different incentive structure for law enforcement personnel, justice for victims will not be achieved,” says Florida State University professor Bruce L. Benson.

Noting that criminal restitution is taken seriously in Japan, Benson suggests this is because in that nation “it is mostly society rather than government that is in charge of crime control.” He believes the success of restitution in the U.S. will depend in part on our willingness to employ “much greater privatization than currently characterizes the U.S.’s criminal justice system.” Benson argues that encouraging private sector initiatives in crime investigation, prosecution, and punishment, combined with effective victim restitution programs, would lead to relatively cost-effective deterrence as victim crime reporting increases and offenders are more energetically pursued and prosecuted. “The likelihood of rehabilitation would increase as offenders respond to incentives to work off their debts and as debt collectors seek ways to support that effort,” Benson writes in The Journal of the James Madison Institute (Winter 2001).

Judge Rosenfeld sees the task as even more daunting. “The precepts and practices of restorative justice require nothing less than a new way of thinking,” he says. “Though I have seen encouraging progress in the courts and probation departments, it’s a mistake to think true balance can come only from the government. There’s a huge community component necessary, a willingness for ordinary citizens to take responsibility for the well being of their neighborhoods.” He says he hopes downtown merchants who typically expect him to throw the book at graffiti taggers and vandals will offer to do some community service time of their own – mentoring troubled youth, for instance.

Nash agrees — reciprocity is crucial. “There’s a tendency to go to an ‘us versus them’ perspective, rather than to a ‘we’ context, when it comes to questions of justice and safety. Repairing harm, reducing risk, and building community are all threads of the same social fabric. The challenge is to establish a safe place where the person who did the harm, the victims and community can talk about what happened, what needs to be done to take care of the harm, and to prevent it from happening again.  The people who are most affected need to have an opportunity to address the offense in a way that can be more satisfying than the traditional justice process. They must have a say in the outcome.”

As a measure of the progress made in recent years toward restoring victim wholeness, we can revisit the famous (some would say infamous) Miranda v. Arizona ruling of 1966, which overturned the rape conviction of Ernesto Miranda. Even though his written and oral confession was not forced, and the defendant clearly understood that the confession could be used against him, Miranda was set free because had not been informed that he could have a lawyer present during questioning. Amazingly, the Supreme Court opinion referred to the rape victim simply as “the complaining witness.”

Marsha Berman, by contrast, is not complaining to anyone. She feels justice was served in her case — for the youthful offenders, for the community, and for herself. “I went through a healing process that acknowledged that I had been victimized. Today I no longer feel like a victim.”

Keith Thompson