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In law school, my professors constantly told me I needed to speak louder and with more authority, more certainty. (“Inappropriately casual” was my most frequently received critique.) As a woman, I had been heavily conditioned to be agreeable and to avoid expressing absolutes. Anyone who has seen Legally Blonde is likely familiar with the Socratic method, a learning technique in which the professor fires a series of questions made to highlight the flaws in the student’s argument and thereby arrive at some kind of greater truth. I will never forget the first time this method was used on me, as it was during my first law school class ever. I was late because I had been stung by a bee on the walk to class. As I was rushing to my seat in the lecture hall, my criminal law professor called on me.
“Ms. Dorn,” she said while I was still walking. I thought it was funny to be addressed so formally when I was wearing leggings. “What is ‘reasonable doubt’?” I desperately wanted to answer, “Jay-Z’s best album,” but I bit my tongue and regurgitated the definition from the reading. I pretty much blacked out I was so nervous, but she left me alone after I was done speaking, so I figured I’d answered adequately. This time, I’d gotten off easy.
More typically, my Socratic method exchanges were as follows. My teacher would ask me whether I agreed with a court opinion. I’d answer the best I could. The professor would play opposing counsel and retort with a “But what about x, y, or z?” My instinct was always to listen, to hear their point, to say, “Oh, right, I hadn’t thought about that” (particularly because they were a fucking law professor, and I was 23).
But my instinct to compromise, I soon learned, should be suppressed if I wanted to be a lawyer. Instead of hearing the other side, I was supposed to stick with my initial position and defend it to the death. The law is inherently adversarial. Each person has a side from which he must not falter. This is how the court arrives at the “correct answer,” we were taught.
But what if there is no correct answer? I wondered. What if there is no right side or wrong side? What if both sides have flaws and merits? I’ve always seen the world in shades of gray, and it felt unnatural to cling to a black-or-white argument. Years later, I realize that my initial instinct may have some value after all. In the past 20 years, scholars and activists have begun to poke holes in the adversarial system and argue instead for restorative justice, which values collaboration over combat.
Problems with the Adversarial System
In 1996, legal scholar Carrie Menkel-Meadow wrote that oppositional presentation of facts — that is, the adversarial system as taught through the Socratic method — may not be the best way to arrive at the truth. “Polarized debate,” she wrote, “simply distorts the truth, leaves out important information, simplifies complexity, and obfuscates rather than clarifies.” Menkel-Meadow explained that “truth is illusive, partial, interpretable, dependent on the characteristics of the knowers as well as the known, and, most importantly, complex.” Likewise, criminal justice scholar Katherine van Wormer lamented in 2009 that the adversarial system hearkens back to “primitive practices related to combat”; Australian professor and former attorney Kate Galloway called it a “performance piece.” Restorative justice, by contrast, has been called humanistic.
Van Wormer, a social work professor at the University of Northern Iowa, became distressed by the adversarial system after reading former criminal defense attorney F. Lee Bailey on how to trick jurors and tear down witnesses under cross-examination. She learned about trials by ordeals (an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful and usually dangerous experience akin to torture), and how the system evolved from trials by combat or dueling in England. Today, van Wormer explained, only ignorant people are chosen for the jury, as more intelligent people might sway the other jurors and/or see through the lawyers’ tricks.
During that time, van Wormer was drawn into a case regarding grandparent visitation that tore her own family apart. The stress caused her mother to have a stroke, and the messy court battle forced van Wormer to take sides and lose contact with her niece, with whom she’d been very close prior to this case. This experience showed van Wormer how the adversarial system can be toxic and divisive.
Nonprofit director Lorenn Walker, who has written a book with van Wormer, told me that the “adversarial system is often like throwing salt into an open wound.” She recounted defending the state against a negligence claim concerning a high school student who was assaulted at school. During the trial, while the mother testified, Walker noticed how her own desire to win and defend her theory prevented her from perceiving what had actually happened to the plaintiff. In this sense, she explained, the legal system thwarts truth-finding.
When Walker defended the state prison system, she noticed that a disproportionate share of the incarcerated had been in foster care as children, were high school dropouts, or were indigent. Later, while working in family court, she noticed that her clients were all facing serious economic, social, and educational hardships but were not given a process to understand how their behavior harmed others and themselves. “They were overwhelmed with the harm they were suffering personally,” Walker told me, “and to be punished only made them feel worse.” While participants in the adversarial system often feel deeply violated, she complained, their emotions are not part of a criminal prosecution. Walker began to realize that the criminal justice system was creating harmful outcomes for the most vulnerable populations. She went back to school to study public health, and in the mid-1990s was introduced to restorative justice.
Restorative Justice: A More Humanistic Model
Howard Zehr’s 1990 book, Changing Lenses, is credited as the first book to articulate a theory of restorative justice. The practice recognizes that punishment is often ineffective. Rather than retribution, the goal is to help offenders recognize the harm they caused and encourage them to repair the damage to the extent possible. According to the Zehr Institute for Restorative Justice, the practice emerged in the 1970s to combat weaknesses in the Western legal system, particularly the general neglect of victims and their needs.
British restorative justice advocate Marian Liebmann told me that she first became interested in the idea of restorative justice while working with crime victims, who had questions she felt only the perpetrator could answer: “Why me?” “What happened to the photos in my wallet?” “Will they come back and steal more stuff, do more damage?” Later, while working with offenders, Liebmann realized they often had no idea how much harm they caused, expressing things like: “They can get new stuff from their insurance.” “I didn’t really hurt them.” The adversarial system, she explained, doesn’t address these issues.
Walker likewise was surprised to learn, while clerking for a criminal judge in the early 1980s, that judges did not learn what happened to the defendants after they served their sentence. For example, were the defendants law abiding or repeating their crimes? Similarly, prosecutors were rewarded for securing maximum convictions rather than ensuring defendants did not reoffend. Walker took this to mean that the adversarial system was not designed to change behavior, but rather was meant to blame and punish.
Restorative justice is a “nonadversarial, nondichotomized process” that “does not pit a lawyer on one side of a dispute against a lawyer on the other side.” In a restorative justice model, the focus is on healing and reconciliation, rather than on inflicting punishment in the interest of retribution. In this process, offenders are asked to take responsibility for their crimes and redress the victim and the larger community.
Restorative Justice Is Inherently Feminist
Van Wormer explained that restorative justice has a “special relevance to marginalized communities, one of which is women.” Likewise, Walker told me that given pervasive gender bias in our culture, women are at greater risk of being harmed by the adversarial system. Women of color, she explained, are even more vulnerable than white women because the party facing more societal bias is at a greater disadvantage in the adversarial system. “If one party is bigger and stronger than the other, how can a fight between them ever be fair?”
Walker further suggested that restorative justice is inherently feminist. Rather than “paternalistic, autocratic and adversarial,” she wrote, “restorative justice is strength based and respects individuals [including women] as agents of their own lives.” Van Wormer likewise argued that the use of restorative justice is often consistent with feminism, which values empowering women and promoting our voices. Of special relevance to women’s victimization, van Wormer explained, are the following feminist values: reliance on the woman’s personal narrative; acceptance of a holistic, nondichotomized view of reality, including a unification of the personal and political; a focus on choice and options; an understanding of the gendered nature of societal power relations; and an emphasis on personal empowerment and dignity.
Van Wormer outlined the four restorative justice models most relevant to women: victim-offender conferencing, family group conferencing, healing circles, and community reparations. Victim-offender conferencing brings together parties in which one person has injured another to resolve and, where possible, right the wrong. Unlike mediation, which implies a dispute to be negotiated, restorative conferencing recognizes its participants as victim and offender as opposed to disputants.
The family group conferencing model is most appropriate in cases of child abuse and neglect. It focuses on parenting and helping the mother with caregiving problems, often through support from relatives. This works particularly well in close-knit communities with strong extended-family relationships. The benefit of this model is that it centers on the woman, with options gleaned from the families and community rather than from state officials.
With healing circles, those involved provide personal support following trauma caused by a violent crime while sitting in a circle. Communication and mitigation are the central focus, rather than reaching a solution.
Finally, community reparation refers to the attempt to repair the damage done by a whole population or even the state. Examples include wartime persecutions, slave labor, mass murder, and other crimes against humanity. Community reparation stresses truth-telling and uniting the personal and the political—that is, recognizing that personal suffering stems from political wrongdoing.
Restorative justice has come up recently in the context of the #MeToo movement. This January, Sara Davidson wrote for the Los Angeles Times that criminal accountability is difficult in the realm of sexual assault “because we’re dealing with the intricacies and contradictions of the heart, and with the deep and often treacherous river of sexual urges.” She believes the #MeToo movement has not sufficiently grappled with this nuance. Anne K. Ream similarly wrote for the Chicago Tribune that because 80 percent of sexual assault cases involve victims who personally know their perpetrators, it’s time to look to restorative justice to redress sex crimes. This means implementing a system that focuses on perpetrator accountability to the victim and community rather than criminal punishment.
In the cases of sexual assault and domestic violence, Liebmann told me, prosecuting offenders through the traditional adversarial system can do more harm than good for the victims. They will likely be cross-examined in court, where they will be disbelieved and have their morals questioned. Victim input tends to be minimal or nonexistent in plea bargaining and sentencing. Van Wormer likewise told me that, historically, victims’ desires do not play into this process. Moreover, mandatory arrests and prosecutions in domestic violence situations in the United States have made many victims reluctant to call the police.
Australian criminologist John Braithwraite commended the recent changes to German prosecution policies in rape cases, in which there are two publicly funded prosecutors. The second one is accountable to and is beside the victim for the entire process. “This is a good protection against the revictimization of women,” he told me, “which is endemic to the adversarial system, and it encourages more rape victims to testify.”
As more women have entered the legal system as judges and lawyers, Walker told me, there has been a greater effort to combat implicit gender bias within the system. “I think the mediation movement since the 1970s and the restorative justice movement of the 1980s, which are both alternatives to the adversarial system,” she told me, “are largely due to women who understand the need for healing, nurturing, and have experienced bias and disadvantage.” Galloway likewise told me that as women have entered the public sphere, the legal system has improved for many women. The downside is that uncovering gender issues has become more difficult. “We now deal not necessarily with overt sexism,” Galloway told me, “but rather entrenched and embedded gendered presumptions. In my view, these presumptions infuse the very fabric of the processes of the law.”
That said, the increasing popularity of restorative justice model — which prioritizes collaboration over combat and seeks to empower vulnerable voices — suggests that prevailing views are changing and that we may be moving toward a more equitable system.
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