Editorial: A New Model for Pursuing Justice

Tuesday, January 02, 2018

American jurisprudence relies largely on procedural fairness and effective representation by counsel to reach a rough approximation of justice. Not infrequently, though, this approximation is too rough to be satisfying to the principals — victims, defendants, lawyers, police and even judges.

That different alternatives exist to the crime and punishment model is the central insight of the restorative justice movement, which Vermont Law School is embracing through the creation of a new Center for Justice Reform, an initiative spearheaded by former Windsor County State’s Attorney Robert Sand. The program will confer a law degree jointly with a Master of Arts in restorative justice, as well as provide a professional certification program.

Restorative justice is predicated on providing an opportunity for an offender to make amends for misdeeds in a way that promotes healing by the victim and repairs the harm that has been done to the community. That includes taking responsibility for the harmful actions and deciding together with community members (and victims if they wish to participate) how best to atone for them. The focus is on the harm that has been done, rather than on what laws have been broken or what punishment should be imposed.

“A restorative justice approach looks at who are the individuals affected by the harm, how can they have a meaningful voice in shaping the response, how can the person who created the harm fulfill the obligations that they owe to the other party and how can we develop a response that leads to a strengthening of individuals and relationships,” Sand told staff writer Jordan Cuddemi as VLS announced its plans.

Such a program is offered in the Upper Valley through The Hartford Community Restorative Justice Center, a nonprofit that describes its mission as reducing crime while rebuilding community.

We are not naive enough to suppose that this model is appropriate for all crimes or that it will transform the nation’s criminal justice system overnight. But it does hold promise. If VLS can train enough lawyers in its principles, then progress may slowly come.

That there may be other ways to apply the powerful idea of making amends was made clear in a recent essay in The New York Times by Aaron Pratt Shepherd, an assistant visiting professor of philosophy at the University of Massachusetts, Lowell. In it, Shepherd argues that combat veterans suffer “moral injuries” just as surely as they do physical and psychological ones. Moral injury occurs when soldiers are, in the heat of battle, “ordered to do things that are unspeakable in civil society” — for instance, firing their weapons into a house regardless of whether noncombatants are inside. The choice made in that impossibly stressful moment may result in a persistent sense of guilt and shame that is impossible to shake, Shepherd writes.

Forgiveness is not the answer to treating a moral injury, Shepherd says, because the action that gave rise to it is irrevocable and in a deep sense unforgivable. “The focus for those who suffer from moral injury (and those who care for them) should shift from forgiveness to creative deeds of atonement . . .” he writes. “Recovery from moral injury begins with identifying the causes and communities that were sacrificed in the heat of battle and finding creative new ways to re-establish loyalty to those causes.” Renewed loyalty to cherished values that have been breached is Shepherd’s prescription for treating moral injury.

Restorative justice and redressing moral injury have this in common: Both focus on common bonds that have been severed by individual actions and restoring them in ways that enrich the lives of individuals and communities. There’s probably a lesson to be drawn here for anyone who has something in life to make amends for — which is pretty much all of us.