Sunday, January 6, 2013

Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.
In 2001, still in practice as a reservist for the Israeli Military Defense Counsel's office, I represented an inmate who was serving a life sentence for murder. Four years earlier, he had shot another soldier to death over a dispute about using the public phone. My client wanted help with a petition to the President of Israel. Under Israeli law, all life sentences are not truly for life; it is the President's prerogative (a relic from colonial days, when the British Governor held the equivalent position) to determine how many years "life" would be.

As we put together the documentation for the petition, we also discussed my client's desire to meet the victim's family and express his remorse for what he had done. He wanted to ask for their apology. I was doubtful that we would succeed, but made some phone calls to the Ministry of Justice. At the time, restorative justice was a nascent field in Israel, and the people I talked to were reluctant to take on this project. They had not tried restorative justice in serious offenses such as murder, and in light of the victim's family's position during the trial (they were, understandably, very upset and very hostile toward my client) did not believe that the family would want to hear from my client, let alone be in the same room with him.

I left the country shortly after handling the case, but often wondered over the years what happened to my client. We recently got in touch again and I was glad to hear that he was doing well in prison, working and studying, and making plans for his release.

This is why yesterday's New York Times story about restorative justice moved me very deeply. It is a story from Florida about a restorative justice meeting between the family of Ann Grosmaire, who was murdered by her boyfriend, and Conor McBride, the man who took her life after a long argument. The article is worth reading in full, because it vividly tells the story from the perspectives of the different parties that took part in the process: Ann's parents, Conor's parents, Sujatha Baliga, the facilitator and a former public defender from Oakland, and the prosecutor, Jack Campbell. The pain of the victim's family is indescribable; the depths of their forgiveness - granted for themselves as well as for him - incredible. I can't recommend it enough.

One of the major challenges on the road to accepting restorative justice as a legitimate and important step in the criminal justice is the victim's contribution to the outcome. After all, two murderers can end up receiving very different sentences, depending on their victim's family's feelings on the subject. Is that fair? Perhaps not from the traditional criminal justice stance. But it is easier to accept such an outcome if one thinks of a murder as something that happens in a certain context, a certain relationship between the murderer and the victim and the people in their lives. As such, the murder "belongs" not only to its perpetrator, but also to those who suffer the ramifications. Nils Christie's classic article Conflicts as Property advocates returning the conflict to the victim and minimizing the role of "conflict thieves" - lawyers, judges, system actors - in its resolution.

This is why it was important, in the Prop 34 campaign, to remind all of us that not all victims are punitive and not all of them believe in the death penalty. This nuanced L.A. Times story shows that different victims responded differently to the prospect of applying the death penalty. Respect for victims means not treating all of them, cookie-cutter style, automatically as staunch supporters of the prosecution, but rather giving them the space to say what they want from the process and how they choose to engage with what happened to them.

Props to Sal Giambona and David Takacs for alerting me to the article.

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