Restorative Justice for Trayvon Martin

There is another way to find justice, independent of the criminal justice system

Posted Jul 17, 2013

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.

Justice for Trayvon

Is there another road to justice?

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 officers (Brenneke, 2012).

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

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, naïve, 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:

The Restorative Circle transformed this conflict into an opportunity for healing, increased understanding, critical analysis of policy and practice, and lasting change. The participants courageously walked into the unknown. Eric Williams, John T. Williams’s brother, said: “It was painful. I didn’t know what I was walking into. It was pretty cool that everyone had a lot to say and share — the police, the lawyers, us.”

The participants expressed their difficult, often excruciating, experiences and revealed their hopes and needs for how it could be different. As one police commander stated: “I thought it took immense courage on Rick’s part to share so much and was helpful to see other carvers share their hurt/pain. I took away a deeper appreciation of what they do and its challenges. I also took away a share of the sense of loss of a brother, son, friend, and artist.”

While tense, sometimes messy, and often uncomfortable, the sharing and mutual respect in the circle allowed for deep conversation between the Seattle Police Department command staff and members of the family that had never happened before. It was safe to be real.…

In her article, Brenneke described a variety of ways the Circle increased mutual understanding and built relationships among those present. In many ways, these relationships are more important than any specific agreements made in the Circle, but to the degree that we are interested in systemic change, a process that did not lead to such change would be, at least partially, unsatisfying. In this case, the parties present produced several pages of agreements designed to address the needs of Williams’ family, the native community, and the police department (Seattle Times, 2011). 

Among the agreements were promised briefings by command staff to patrols at roll calls regarding what transpired during the Circle and a commitment to explore more in-depth changes to Seattle Police Department policies, training, and practices, including a plan to increase understanding and cultural sensitivity to First Nations peoples. The Seattle Police Department also agreed to implement immediate changes to how new officers are trained.  Notably, the agreements included a feedback loop back to the Circle participants regarding the implementation of these and other policy changes and personal ongoing communication between the police chief and Williams’s family regarding the department’s investigation into this case. 

It appears that the agreements are having the desired effect. According to Brenneke (2012, Participants’ Assessments section), Rick Williams reports: “People are seeing a difference in how police are engaging on the streets, it has gotten much better. People tell me that they appreciate what we are doing. What we need are more opportunities for safe, direct, communications like those we had.”

John T Williams totem

John T. Williams Memorial Totem Pole, Seattle Center, February 26, 2012 shortly after it was raised.

Moreover, the Circle also yielded a resolution of the family’s civil rights claims (the family and city agreed on a $1,500,000 settlement (Seattle 911, 2011), without the unpleasantness and expenses of extended litigation.  It also resulted in the police command staff’s participation (with support from the family and Native American community) in memorial events honoring John T. Williams and inspired a community healing process – a public art project to carve and raise a totem pole to honor Williams and the native carving tradition.

The Circle also seems to have given Rick Williams the ability to rehumanize the man who shot his brother. According to Brenneke (2012, The Participants Meet Again section), “Rick Williams now articulates the shooting by the officer as a terrible ‘mistake arising from fear,’ and, along with other participants and community leaders, is exploring the possible adoption of the RC process as part of a long-term strategy for transforming police/community relations in Seattle.”

Notably, like Zimmerman, officer Birk, the man who shot Williams, still had to negotiate the mainstream criminal justice system. In cases of criminal conduct, it is rare that a restorative process like RC would replace a criminal proceeding, though the judge might take what transpired during the restorative process into consideration. In this case, King County Prosecutor Dan Satterberg decided not to bring criminal charges against Birk, which, in the minds of many, demonstrated yet again the failure of the criminal justice system to produce justice.  In Martin’s case, though criminal charges were filed and the case against Zimmerman brought to trial, our formal justice system similarly failed to produce an outcome that feels just to a significant portion of Americans.

The Williams case shows a different type of justice system at work, a system that would greatly benefit the Sanford community and serve as a model to the rest of the nation for both how to “do justice” and heal from the tragic events that led to Martin’s death. Moreover, unlike our formal justice system, restorative systems can be activated for any conflict, no matter how large or small, which means that a similar (probably much shorter) process to the one just described can also be used to work through racial microaggressions and other types of racial conflicts.

The John T. Williams Circle is unusual in its visibility but not at all atypical in terms of outcomes. To the contrary, the outcomes described by Brenneke (2012) are consistent with a growing body of literature documenting the effectiveness of restorative practices in general and Restorative Circles in particular. As just one example, the United Kingdom-based National Endowment for Science, Technology and the Arts (NESTA), which recently selected Restorative Circles as one of just ten international public programs exemplifying “radical efficiency,” reported a satisfaction rate of 93% by surveyed participants of 400 Restorative Circles in São Paulo and, in one school district, a 98% reduction of police school visits following a school-wide adoption of Restorative Circles in 2009 (Gillinson, Horne, & Baeck, 2010). Moreover, a recent review of research on restorative justice across multiple continents showed that restorative systems reduce recidivism in both violent and property crime in comparison to traditional justice systems and provide a variety of benefits to the "victims", including improved mental health and greater satisfaction with the justice process (Sherman & Strang, 2007). Especially in the United States, which incarcerates a fifth of the world’s prisoners at a cost of more than $75 billion a year (Schmitt, Warner, & Gupta, 2010), these are compelling findings.

Outcome studies are important, but they are unable to capture either the nuances of the process or the internal shifts that typically occur when individuals gather not to blame and punish but to repair and restore. The Williams case provides one such example. Could not the Martin case be another opportunity?

Certainly, in many important ways, the Martin case is different from that of Williams. For one, Zimmerman is not a police officer and, therefore, is not assumed to represent or serve the city and its people.  For another, what happened in the moments leading up to the shooting are less clear (and therefore much more contentious) in Martin’s case. The national visibility of the Martin case and the country’s different racial history with Black and Native Americans are also significant.  No doubt there are other differences. There always are. The point here is not that the two cases are so similar that they should be treated the same way but to show what a restorative response to a situation like Martin’s can look like.

I don’t know what restorative justice would look like for Martin’s family or, for that matter, for Zimmerman. In all honesty, despite doing restorative work with incarcerated youth for several years, given the trial's outcome and our nation's preoccupation with assigning blame, it is hard to imagine Martin's family and Zimmerman to agree to participate in such a process, especially if they have not had previous experience with it, as I assume they haven't. It's not clear to me how to create the conditions where a restorative response is not only familiar but normative. What I do know is that our conventional justice system, even at its best, is severely limited in what it offers, and restorative systems provide the best way I’ve seen thus far for justice, for healing, and for the kind of world where, at least in matters of justice, there really isn’t a Black America and a White America. Till’s case spurred a social justice movement.  It’s time now to take the next step.

 

References:

Ayres, I. & Borowsky (2008). A Study of Racially Disparate Outcomes in the Los Angeles Police Department. Retrieved 6-01-2012 from http://www.aclu-sc.org/downloads/2/681086.pdf

Brenneke, A. (2012). A Restorative Circle in the Wake of a Police Shooting. Retrieved 5-22-2012 from http://www.tikkun.org/nextgen/a-restorative-circle-in-the-wake-of-a-police-shooting

Gillinson, S.. Horne, M., & Baeck, P. (2010). Radical Efficiency: Different, Better, Lower Cost Public Services. NESTA.

Lyubansky, M. (2013). Restorative Justice for Trayvon Martin. Journal For Social Action in Counseling and Psychology, 5, 59-72.

Lyubansky, M. & Barter, D. (2011). Restorative Approaches to Racial Conflict. Peace Review, 23, 37-44.

Sherman, L.W. & Strang, H. (2007). Restorative Justice: The Evidence. London: The Smith Institute.

Seattle 911 (2011). Read the City’s Settlement with the John T. Williams family. Retrieved 11-19-2012 from http://blog.seattlepi.com/seattle911/2011/04/29/read-the-citys-settlemen...

Seattle Times (2011). 9/13/2010 Restorative Circle. Retrieved 11-19-2012 from http://seattletimes.nwsource.com/ABPub/2011/02/02/2014113681.pdf

Schmitt, J., Warner, K., & Gupta, S. (2010). The high budgetary cost of incarceration. Center for Economic and Policy Research. Washington, D.C.

Tullis, P. (2013). Can forgiveness play a role in criminal justice? Retrieved 1-20-2013 from http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a-role-i...

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