Investing in restorative justice

Do Madisonians believe in second chances?
Investing in restorative justice
Photo by Tim Burton

The June 2016 arrest of Genele Laird for causing a disturbance at East Towne Mall challenged this community on many levels. The incident involved Laird, then 18, allegedly brandishing a knife during an encounter before police arrived. A subsequent video went viral of two white, male Madison police officers subduing the much smaller African American female. It raised issues of public safety in public places, law enforcement policies and criminal justice procedures. It tested the public’s ability to absorb what we see and how we act in response. And it came with racial overtones similar to encounters between white police officers and black citizens around the country. During the very tense 48 hours that followed the posting of the Laird arrest video on social media, we as a community were confronted with some very important questions, among the most important of which was: Do we believe in second chances?

Residents of greater Madison believe in some shared values. They believe in public education, for example, and the quality of schools, and they’re willing to raise their own taxes (repeatedly) to support those schools. Madisonians believe in a healthy environment, especially clean lakes, and they’re willing to support policies to protect our waters. They believe in sustainable agriculture and healthy, local food and support a dozen or more farmers’ markets. They believe in robust dialogue, followed by more dialogue. And studies–lots of studies. But are Madisonians willing to invest in a restorative justice system?

Dane County Executive Joe Parisi thinks we are willing. He says when it comes to valuing public safety and justice, Dane County citizens want people held accountable. But he says he thinks they also believe in second chances, and that’s why he believes there is support for community restorative courts as part of Dane County’s criminal justice system.

Restorative justice is not a new concept. There were forward-thinking reform advocates in Dane County who embraced the CRC idea 20 years ago. It’s a concept meant to repair harm caused by criminal behavior in an interventional way, as opposed to traditional crime and punishment. Restorative justice programs or courts give offenders the option to avoid fines and a conviction record through a voluntary process that is meant to transform individuals and reverse patterns of misbehavior while avoiding punitive measures and prison.

Dane County is among communities at the forefront of embracing this cooperative process involving willing stakeholders. Another local restorative justice initiative is YWCA Madison’s Restorative Justice program, which came after wheels starting turning on the county’s community restorative court, or CRC. The YWCA program, which focuses on youth ages 12 to 16, has an overarching goal to address the school-to-prison pipeline that disproportionately impacts students of color, students with disabilities and LGBTQ students.Investing in restorative justice

Along with economic inequality, affordable health care and educational achievement gaps, criminal justice reform is one of the most important and pressing issues facing the nation. An unjust criminal justice system threatens civil society and democracy. But beyond addressing policies that affect who is in our jails and prisons, how and why they got there, how they are treated while incarcerated and what becomes of them when they reenter society, there are other fundamental components to systemic reform: keeping people from entering the system in the first place, and repairing the harm caused by crime. That’s what makes justice restorative, and restorative justice is essential in reforming America’s criminal justice system.

If Dane County is going to be recognized as a national leader in criminal justice reform, as it is poised to be, this is the year to cement commitment to community restorative courts as a fundamental component of that reform.

That sounds easier than it is. Reforming policing, prosecution and incarceration policies is gaining more public attention and support all the time. But it’s still a heavy lift politically. Dane County district attorney Ismael Ozanne, for one, decries that a state once admired as a national leader in criminal justice now, for the first time ever, has a Department of Corrections as the largest state agency and spends more on incarceration than education. “That is a real blow … to our true history and our legacy within the nation as leaders in rehabilitation, in humane treatment of those who come into our systems, and frankly, just of our citizens,” says Ozanne. “When we talk about what makes us safer, Wisconsin has usually been out there in front.”

Ozanne says reform, including an expanded community restorative court system, “has the ability to put us back out in front.” For the last few years, Ozanne has been creating a comprehensive approach to systemic reform, including enhanced diversion efforts, an innovative approach to corporal punishment cases and community-based correction initiatives. Ozanne’s support for community restorative courts is central to a broader county acceptance of restorative justice–acceptance that took a while to achieve.Investing in restorative justice

Finding the Champions

In the mid-1990s, when community leaders like former Dane County Juvenile Court Administrator Jim Moeser and Briarpatch Youth Services Program Director Jay Kiefer were championing restorative justice principles, there was resistance. Some prosecutors and judges were reluctant to embrace what was then known as the balanced approach–community protection, competence development and accountability. Then, like now to some degree, the resistance was likely caused by fear of making a mistake; diverting someone who later reoffended would suggest to the public they were too soft on crime. But ballooning prison populations and indefensible racial disparities in the interim have increased demand for alternatives, including the community restorative court.

“We need to reform the daunting racial disparities that exist in Dane County.”

-Sheila Stubbs, Dane County Board of Supervisors member

Support for a CRC was built over the last several years with champions including Joe Balles, former Madison police south captain; Shelia Stubbs, Dane County Board of Supervisors member; and Jonathan Scharrer, director of the University of Wisconsin Law School’s Restorative Justice Project. The basic premise is that anyone (usually a first offender, typically young) accused of committing a crime, presumably a misdemeanor or lesser offense, would admit guilt and meet with the victim and with community members who would decide on community service and/or restitution. It is voluntary if the victim wants to participate in the procedure at all. If the victim opts out, then the community, in the form of peacemakers, represents the victim.

The CRC method reflects a deeper appreciation of the harm done by a specific act. But it also keeps a person from entering the system–being formally listed in the state’s online court records database, known as CCAP, which can ruin a young person’s life before it has really begun, making it prohibitively difficult, if not impossible, for an offender to later find employment or housing. Investing in restorative justice

Avoiding CCAP is one of the driving factors behind CRCs and is critically important to Stubbs’s impassioned support. “That’s one of the prized possessions,” Stubbs says. “It’s so important when people do this particular community restorative court–they don’t get a CCAP entry. They’re younger and they don’t make the best decisions. But what happens when they turn, like, 30, and now they want to work in a bank? Have we ruined their life and held them to such high standards that we forget they were children?” She calls CRCs “a hidden gem.”

With the support of Stubbs and others on the Dane County Board, an experimental CRC was approved and began hearing cases in June 2015 when the Madison Police Department agreed to be the first municipality to refer offenders directly to the court. And Stubbs in particular is an outspoken advocate for expanding the court as a critical component of justice reform. “We need to reform the daunting racial disparities that exist in Dane County,” says Stubbs. “I just really feel like we’re in a time in this county and in this state [when] the traditional system has not worked. … So if we can get the community to continue to support the peacemaking component, volunteering, actually holding citizens responsible for their actions and then coming back and saying, ‘This is what’s going to work for our community,’ [then] I think we’re going to win–I think it’s going to be a win-win.”

The Opportunity

Before the high-profile Laird case, there was the case of Denzel McDonald. McDonald was a University of Wisconsin-Madison student, then 21, who was arrested (while sitting in class) in April 2016 on charges of 11 counts of spray painting graffiti on campus buildings. When the case was referred to the CRC, there was grumbling at what some viewed as inappropriate leniency for someone accused of felony misconduct–which is not one of the crimes intended for direct referral to the CRC from law enforcement. But it was close to the line, and Ozanne–aware of the interest from both sides in how the case should be handled–chose the CRC route. However, it didn’t come close to the level of public attention and controversy surrounding Laird’s arrest, which eventually became a CRC case. (Madison Magazine requested an interview with Laird for this story, but judicial officials declined on her behalf.)

The images of Laird’s struggle with police, captured on a witness’s phone, led to angry protests. It also led to expressions of support for the two officers (and police in general) and a desire by some to hold Laird accountable for her resistance. Ozanne knew right away he had a controversial issue on his hands.

“Genele Laird’s case, I guess, in a nutshell, captures a lot of issues within the community as a whole: use of force, police authority, public safety, a dynamic of a smaller citizen and possibly larger officers–any number of different issues,” says Ozanne. “I don’t believe in that video you truly see the spitting or expelling of fluids, I don’t think you see the digging of the nails or the kicking; you see, obviously, the actions of the officers–that all speaks for itself. You also don’t see or hear what happened inside the mall prior to this incident.Investing in restorative justice

“That said, it is what it is. It created, potentially for us, an opportunity to try a new approach to actually have a better outcome not just for the individual, not just for Genele Laird, not just for the officers, not just for the security personnel at the mall, but for this entire community.”

This restorative justice approach, Ozanne says, would give a greater voice to the victims in the case. And that’s an extremely important component, Ozanne says. It broadens the definition–and acceptance–of who is considered a victim. He says some in the community might say that the true victim and the only victim was Laird. But Ozanne says others were impacted as well, including the officers’ families, the mall itself and the people who visit the mall. “When something like this happens at the mall, people will think, ‘Well, is the mall safe anymore? Is the mall a viable option for me?’ ” he asks.

In Ozanne’s opinion, there was a very strong case, even with the video, that Laird was a victim. But, she was arrested for her actions. So, Ozanne asks, should she have been charged with felonies? She is young, he says, with no criminal history and who, “frankly, hadn’t had the easiest life.” Should the system basically make people like her felons for the rest of their lives? “And if we did,” Ozanne asks, “would that response–being a strict law-and-order response–really make us, as a community, stronger, safer and better equipped to move into the future?”Investing in restorative justice

A Behind the Scenes Decision

Like Ozanne, the two officers involved, Richard Friday and Andrew Muir, needed to make a difficult decision very quickly. With Laird in custody, the clock was ticking. She was approaching the statutory window of time in which a bail hearing is required, and once a bail hearing is activated, the accused is in CCAP and there’s no turning back. In addition, supporters of Laird were mobilized and speaking out. There were some who not only would be angry that Laird was charged, but who were demanding the two officers be charged with criminal offenses.

It was an extremely volatile situation. The circumstances as they stood would almost certainly lead to charges filed against Laird. And then Ozanne said he got a call from Madison police chief Mike Koval. “I’m OK with you looking at this case with an outcome other than just the traditional criminal justice system,” Ozanne recalls Koval telling him.

“If [police officers] understand that people are basically good at their very core … what is it, then, that we can do or can help with to assist them in realizing their fullest potential of goodness? … I think the CRC has the courage to acknowledge that we’re [all] multifaceted human beings [and] we’re all struggling.”

-Mike Koval, Madison police chief

And Ozanne interpreted that as a green light to reach out to officers Friday and Muir, “which we were able to do in a very short window of time with the help of their union, the Wisconsin Professional Police Association,” Ozanne says. Ozanne thought the officers were at home, not on duty. “So we went through the union to see if we could get them here. And Jim Palmer, the [executive director] of the WPPA, helped us to have a meeting so that we could explain to them more about the community restorative court, about this option that, frankly, if they didn’t want, we wouldn’t pursue,” he says.

There was a meeting that evening, and eventually Koval asked that everyone leave the room except officers Friday and Muir. Koval recalls telling them, “I need to hear from your lips to my ears that you are doing this because you want to do this of your own volition, that you see the merits of that, that you go in eyes wide open, and that you’re not being used as some sort of political pawn in a grand scheme of messaging. If I hear that to my satisfaction, then I’ll let them back into the room. But I don’t want you to feel like all the world is pressuring you into making this decision. I need to know that you are of the same heart and mind, and I need to hear it without handlers, or without you feeling like you have to pander to someone or accommodate someone else. I just need to hear that as officers before I’m willing to continue this conversation.”

Koval says he was convinced by the officers’ sincerity and honesty about giving the CRC a go. “And that’s when I let everyone else back in and said, ‘I guess now we can talk turkey about what this would look like and how we can avoid having her go to court and generating a CCAP,’ ” Koval says.Investing in restorative justice

Could the Laird Case Set the Standard?

The restorative court process has defined standards for every case. Laird’s was no exception. There’s a lengthy intake assessment, a victim impact statement, the assignment of volunteer community peacemakers who must sign a confidentiality agreement and a “repair harm” agreement and a “restitution information” form. Also required is participation in “Circle Justice” sessions with residents, victims and respondents working together. (Ron Johnson, Dane County Department of Human Services’ first community court coordinator, says Dane County’s Restorative Justice program is modeled after processes that have been used by Native American tribes for generations.)

However, there is some built-in flexibility to accommodate individual circumstances of each case. Laird’s Community Restorative Court standard reporting form shows 106 hours of CRC-sponsored events and activities including circles, counseling sessions, community service, attendance at a “mini-Citizens Police Academy” and presentations to youth groups. It also lists apologies to officers Friday and Muir, East Towne Mall security guard Rose Skarski (who also agreed to the CRC referral after some initial reluctance) and the entire Circle group. Johnson stresses that the apologies were mutual; Laird apologized to the group, including the officers, and everyone apologized to her that it even happened. The officers agreed they wished it could’ve gone down differently. The form, with a listed date of case closure of Aug. 17, 2017, also concludes with the following: Laird’s residence is stable and her family is reuniting, she’s currently attending Clarke Street High School and she’s employed at Pick ‘n Save in Stoughton.

For all those reasons, CRC officials and advocates–especially Ozanne, Johnson and Koval–believe the process in the Laird case was and is a success.

There is clearly a legitimate difference of opinion on how much focus should be given to Laird’s case as an example of the effectiveness and promise of the CRC. More than one player in the case has referred to the experience as transformative. Things were said and done that were deeply moving. Perceptions changed. Minds opened. But while it’s frustrating on some level that these stories cannot be told (especially for the positive influence they would have on people’s views of restorative justice), there is justice, too, in defending and protecting the integrity of the system, including a level of confidentiality. Johnson talks about the necessity of “keeping a safe place.” And those who see the value in a more public awareness of this specific case are still free to offer their perspectives.

Koval says he thinks it was a transformative experience for everyone involved to see breakthroughs in understanding that were real, genuine and authentic. All parties went from polarity on many fronts to a place where they can now hold deeper conversations, Koval says. “And I think that has truly been an awakening for everybody associated with the CRC.”Investing in restorative justice

Read more about Ron Johnson here.

“This young lady has been restored,” Johnson says. “The police officers, I guarantee, they are going to be better officers after this.” And so, he says, this case is much bigger than Laird. Perhaps it is going to influence some of the training that can–and will–take place in the academy, he says.

And the case has broader implications, Johnson says. “There are many communities around the country that have had similar cases that have evolved into violence and protest and polarization and so forth. This case hasn’t. I think that the Genele case could be a national model,” he says.

Investing in the Process

There is, however, some considerable risk in using the Laird case as the best argument for a CRC. Very few restorative justice cases are likely to involve law enforcement as either victims or perceived offenders, be captured on video and go viral or inflame public emotions as Laird’s arrest did. Indeed, if the public is going to support greater application of restorative justice principles and more resources for an expanded community restorative court, it will require something deeper and perhaps harder to describe.

“I think people need to understand the power of empathy,” says Ozanne. Many of us learn empathy as children, he says, through interactions with parents and others. “Kids make a mistake, and adults sit down and ask, ‘How could this have been different?’ Right or wrong, there are some people in our community who–because of pressure, because of stress, because of life experiences–don’t necessarily have some of those conversations, don’t necessarily see the world as being fair, don’t necessarily see the positive side of the law enforcement officer coming into their community or being present.”

The community court/restorative justice system introduces those missing voices into the process by virtue of volunteer peacemakers and mentors. That environment, and the confidentiality it maintains, allows people to open up, Ozanne says. “It allows people to see each other as humans, not as who their agency is or their employment is, but as a real human impact from this case, from information, from the media–not just that person, but members of that person’s potential family, or the community at large.” Ozanne says the case’s complexity allowed people to see that and grow from it. “And I think that’s the power of it,” he says.

Changing Perceptions

It’s hard to overstate the important role of the peacemakers. They are volunteers, though many are recruited by Johnson for specific cases. Floyd Rose, president of 100 Black Men of Madison, Barbara Harrington-McKinney, a Madison alderwoman, and Corinda Rainey-Moore, manager of Kids Forward outreach and engagement, were among the peacemakers for the Laird case. There’s no quibbling with authority of that magnitude. All peacemakers go through formal training and lots of role playing, and are considered skilled in the work. They undergo 16 hours of training, and the CRC hosts bimonthly educational seminars.

Still, there are some like Caroline Werner who prefer to think of their roles as that of mentors. “On some level, it feels like a lot of responsibility. On another level, it’s fun,” says Werner, a social worker (not specifically for the CRC) who is disarmingly forthcoming about her own life’s challenges. “I get to be a parent for a short time because I don’t have children of my own. I never thought I could raise a child appropriately because of the way I was raised. And so when I see the youth, I kind of relate from my own childhood on some level. And it’s a challenge. And that’s the piece I really like. I like that I’m able to, for this one particular youth, follow through for a period of time.” Investing in restorative justice

The process of expanding the CRC is sticky, involving both politics and citizen support. Arguments on both sides are difficult to characterize succinctly. For example, Ozanne would like to see more cases referred to the CRC directly from participating law enforcement agencies. Right now, that includes Madison and Fitchburg, although Stubbs is leading efforts to secure memoranda of understanding with Sun Prairie and Middleton, and she says she’d like to reach out as far as Stoughton and McFarland.

But some officers and some other municipal officials want cases to go to the district attorney’s office first and be referred from there. Again, there seems to be a fear of making a mistake. No one wants to be the first to have a CRC referral reoffend in perhaps a much more tragic way. But that leads to a problem of numbers. County Executive Parisi and some county supervisors have asked to see a greater number of cases referred before committing to the funding required to expand the court, although they eventually approved additional funds in early 2017. It may be nothing more than growing pains. Stubbs is certainly undeterred.

“We’ve been in this project right at three years, and OK, so we’ve not done as many cases as we would have liked, but we built it slow, we built it correctly, we put in the right partnerships and we’ve had successes,” Stubbs says. But in trying to avoid failure, Stubbs asks, what is missing? What can they do better? How can they get more memoranda of understanding? They’ve gotten stuck sometimes, she says, because no one else in the world is doing what Dane County is doing. “So I look at it as we were brilliant; we’re doing it the Dane County way,” she says.

Ozanne says some of those who advocate for referrals to be generated from his office don’t realize the resources required to do that. If there were more direct referrals from law enforcement to the CRC, those resources could be put to better use dealing with more serious cases. But Parisi argues DA referrals “are the most important piece of this, because once someone’s case has gone before the district attorney, [he or she is] in real danger of being charged and starting the electronic trail of having a record. So ideally, more cases would come from the district attorney’s office because those would be people directly diverted from circuit court.”

The arguments on all sides of these different perspectives can feel confoundingly circular. It’s hard to imagine most citizens being able to understand some of the more complicated aspects of the concept to the degree needed to provide the base of public support that additional resource allocation will require. And yet, no one disputes the potential of the restorative justice model and of community restorative courts.

For Parisi, that potential includes recognition of Dane County as a national leader, because the CRC “fits the values of our community and reflects the values of the people who live here.” Parisi says he supports the CRC because it addresses the root cause of the crime committed and leads to safer communities in the long run. Peacemaker Werner says, “We’re definitely on the verge of making big changes and raising lots of consciousness, helping young people turn their lives around when there’s still plenty of time.”

Rose says because of the CRC’s “serious intent of transforming the justice system and reducing the numbers of people in prisons … it is an option that has amazing potential.”

“The CRC process affords an unfiltered voice for those involved, and that method is very powerful short-term and long-term. It creates accountability on all sides. If there’s a way to increase the volume of CRCs, the community will be better served.”

-Floyd Rose, volunteer peacemaker; president, 100 Black Men of Madison

Koval says the beauty of the CRC is its ability to change perceptions by adding layers of human understanding and awareness of the causes of weaknesses we all have.

“I hope every police officer believes that when they go to work every day, that we have to start our day with the idea that people are basically good,” says Koval. “So if we understand that people are basically good at their very core, what is it, then, that we can do or can help with to assist them in realizing their fullest potential of goodness? … I think the CRC has the courage to acknowledge that we’re [all] multifaceted human beings [and] we’re all struggling.”

And for Ozanne, it’s creating a restorative justice model outside of the criminal justice system that will foster a community relationship. “Restorative justice isn’t new. It’s happening across the nation,” Ozanne says. The importance and the power of it is that the awareness is growing, he says. “What this does, and what it has done, it truly allows us to be a little different than anyone else.” Other people are doing it within the criminal justice system, he says, but this adds the restorative justice component and builds empathy among its participants, which is the most powerful thing to stop recidivism–“to actually keep people out of the criminal justice system for good.”

In other words, give them a second chance. Then 2018 becomes a year in which Dane County has the opportunity to give the state a second chance as a national leader of criminal justice, and, in the process, add to the already estimable list of values that Madisonians share.

Neil Heinen is editorial director of Madison Magazine and WISC-TV.

Read more about Ron Johnson, the CRC’s community court coordinator here.