THE CRIMINAL JUSTICE SYSTEM has a well-founded reputation for focusing on punishing offenders, but the Massachusetts court system is preparing to launch a three-year experiment this spring utilizing an approach called restorative justice.

Restorative justice, broadly, works to rehabilitate those who commit crimes and address the harm they have done by working with victims and survivors to find ways to hold criminals accountable other than incarceration.

The idea has been kicking around for years, but it finally gained a bit of traction in 2018 when  criminal justice reform legislation authorized the creation of a Restorative Justice Advisory Council and the Supreme Judicial Court formed a Committee on Restorative Justice. The SJC committee put out a request for proposals at the start of this year seeking vendors who could launch a pilot project in Suffolk and Plymouth counties. 

Vendors would serve as restorative justice facilitators for those charged with misdemeanors and felonies, convening groups of community members to oversee perpetrators’ rehabilitation through what Supreme Judicial Court Chief Justice Kimberly Budd has called a “victim-centered process, where harm is acknowledged and repaired by and through the community.”

“What we’re trying to do in the courts is an exciting experiment,” said Peter Krupp, associate justice from Suffolk Superior Court and vice chair of the SJC committee, as he sketched out the pilot in a presentation to the advisory committee on Tuesday. 

Restorative justice work is already ongoing in places like MCI Norfolk, several courts in Suffolk County, and some federal courts. It tends to be a back-end process, Krupp noted, focused on those who have already been convicted and serving their sentences. 

“And the idea was to front-end-load that,” he said. “That is to say, if defendants and if victims could receive the kind of restoration, the kind of repair that can often come from restorative justice on the back end of a criminal case, if it were possible in appropriate cases to do it on the front end, it would make sense.”

Four courts – Suffolk Superior Court, Roxbury Municipal Court, Plymouth Superior Court and Brockton District Court – have agreed to take part in the pilot program, Krupp said. The pilot would be financed through court monies, and would likely be a “relatively modest expense,” he said, though there is not yet an exact dollar figure in the RFP.

Before participating in the voluntary pilot, both prosecutors and a defendant’s attorneys would need to agree that the case was suitable. No criminal offense would be excluded from the pilot, though Krupp and state committee members acknowledged that the first cases would likely be minor or moderately serious to allow the system to build capacity for more complex cases.

Offenders could enter the restorative justice process at three points: Pre-plea, where taking part in restorative justice might inform the district attorney’s decision on charges; post-plea but pre-sentence, which Krupp expects would be the largest share of restorative justice cases; and post-adjudication restorative practice, where someone may be sentenced to years of probation but knock time off the sentence for engaging in the process.

Even in a restorative justice framework, “the system is still there,” said Allison Cartwright, managing director for the Committee for Public Counsel Services, which represents defendants who cannot afford their own attorney. “We still have to interact with one another. And yes, we’ll be fighting over which cases we think are appropriate. We may find that we have a client that would definitely benefit from this. The other side may not agree. So there’s a whole lot of learning and relearning that’s going to have to take place in order to have this work. But I am confident that we will be able to find that middle ground where this can take place.”

At the appropriate time, the vendor would convene a “restorative justice circle” made up of other people who have caused harm, the person who had caused harm in this instance, those who had been harmed by the defendant’s conduct, people to stand in for victims, and other members of the community. The circles would be strictly confidential.

The circle would meet multiple times over a period of months, Krupp said, during which time the case “would be essentially put on hold” while the circle works through appropriate alternative ways of being held accountable, “and the defendant would explore the extent of the harm caused, ripples of harm that ran out from his conduct or her conduct, and ways of making that harm better or or repairing that harm.”

At the end of that process, the circle would determine whether the defendant made amends and changed, and that would be communicated to the court.

“Teachers and mentors that I would find later in life, maybe I could have found them earlier,” said Dennis Everett, Jr. a former gang enforcer and now activist and director of restorative justice for the Massachusetts Executive Office of Public Safety and Security. “That would have given me a different pathway. So it’s a selfish, childhood-healing thought, but I appreciate you all making that pathway for someone else, and also guarding the pathway [so as] not to create a place for people that look to take advantage of weak systems.”

Committee members teased out tensions in restorative justice framing, which can focus on the perpetrators’ rehabilitation without fully centering victims. 

“Restorative justice isn’t diversion,” said Kara Hayes, chief of the victim witness assistance program in the Suffolk County District Attorney’s Office.

“Thinking about this as a carrot and a stick is traditional in the mindsets of our courts,” Hayes said. “I do think that one of the things the trial court could really help with, perhaps with the vendor, is helping all of us to recognize that this work is for a small population of people who are ready to change. It is, in that way, so much like recovery and substance use disorder in that we have to find those unique folks who are in a charged posture but who are also looking to be different, not just to check the boxes of doing programmatic responsibilities with their probation officer or somebody else.”

Victim and community buy-in is essential, but also a difficult lift, committee members said.

“There is much more concern about how victims are feeling about how they’ve been involved in the process, and has it been good for them,” said Middlesex District Attorney Marian Ryan. Her district has had trouble since the pandemic educating judges, advocates, attorneys, and offenders about existing restorative justice options.

“In a place where we are very actively trying to get people to engage in restorative justice, we’re having a hard time,” she said. “So I can only imagine what’s going on in some of the other counties that are not using it as often.”