Rochester’s underground justice system

Whenever Rochester Police Chief James Sheppard is asked to explain this year’s surge in violent crime, he answers that many of the city’s altercations are the result of “ongoing disputes.” It’s a response that some people find wanting — after all, couldn’t most shootings, stabbings, and assaults be attributed to a dispute of some kind? People don’t shoot each other because they’re getting along, right?

Sheppard’s explanation points to something deeper, however. The act of violence, the retaliation to that act, the unwillingness of witnesses to talk to police: it’s a closed system, but a system nonetheless. And it’s incredibly difficult for outsiders, including the police, to penetrate that system — which could help explain why police have made so few arrests over the course of this violent year.

The parallel justice system functioning on the streets of Rochester is not effective and certainly not desirable, says Dominic Barter, director of training for the Brazilian Restorative Justice pilot projects. But people who distrust the traditional system view it as the only option to achieve some measure of justice.

“There’s been a break in faith with the current justice system, which is important for all kinds of reasons,” Barter says. “If people start breaking away from the justice system, it reveals a larger split within society, and the giving up of hope that mainstream society will actually treat everybody as equal and take care of everyone.”

Barter pioneered a form of restorative justice called restorative circles, which brings together the people involved in and impacted by a conflict — including community members — to promote understanding, self-responsibility, and action. The process ends when the parties reach agreement on how the offending party can heal the rift with the person directly injured and with the wider community, which has also been damaged by the act, Barter says.

Restorative circles and processes are used in schools, prisons, neighborhoods, and many other places, he says. Judges sometimes factor-in offenders’ participation in a restorative process when handing down their sentence, Barter says.

In Rochester, progressive activists, including those who served on the committee to revamp the process for filing complaints against the police, called for restorative practices to help deal with the violence plaguing the inner city. Awareness of restorative practices is growing locally, Barter says.

There are restorative programs at Monroe High School, Wilson Magnet, the University of Rochester, and the Rochester Police Department is doing a pilot program with young people in southwest Rochester.

“There is a lot of movement in Rochester in restorative practices — in schools, in the police department, in the courts,” says Janelle Duda, assistant director for the Center of Public Safety Initiatives at the Rochester Institute of Technology. “This is absolutely the time for this.”

Rochester responded to the last two big spikes in violent crime with police crackdowns. Zero Tolerance essentially flooded the city with cops. And Police Chief Sheppard says a big part of Operation Cool Down — the current initiative — is proactive policing. He’s unapologetic about stopping people for minor offenses —for not having a bell on your bicycle, for example — to try to get guns off the street.

Barter says he supports the intensity of the response, but he’s concerned about unequal enforcement. It’s a fear shared by many local activists and civil libertarians, as well as some community leaders.

“Are there other communities where people are not treated the same way?” Barter says. “If there are, then even as you do justice, you’re creating an experience of injustice. Why am I stopped for riding a bicycle without a bell in this neighborhood and not in that neighborhood?”

But blaming the police is too easy, he says, because law enforcement is empowered and sanctioned by the community it serves. And people need to understand that all conflict belongs to the community as a whole, Barter says, even if the conflict manifests between select members only.

“It’s not a shooting that happens in the Crescent, where I don’t live,” he says. “It’s a shooting that happens in Rochester, where I live. So it’s mine. It’s my conflict. I have a responsibility in this thing that is happening.”

And that, he says, is the essence of restorative justice.

Barter says he knows there’s temptation to dismiss restorative justice as a bleeding-heart approach to criminal justice. But he says it’s actually a much more robust response than the traditional criminal justice system, because offenders must face up to their actions when they confront the people they hurt.

“We put the person who committed this act really on the spot,” Barter says. “They’re really exposed. Restorative justice is not the soft option.”

In Barter’s system — restorative circles — the offender and the victim meet in a location that’s significant to the community. Barter says the space should inspire respect and symbolically convey to the participants the importance of what’s about to take place. The participants also choose the other people they want to participate in the circle — people indirectly affected by what’s happened.

“They need that third member of the community, the invisible participant in every conflict,” Barter says. “They need those people to say, ‘Hey, it may work for you to carry on squabbling like this, but it doesn’t work for us. We need you to work this out.’

“That’s why it’s not bleeding heart,” he says, “because it’s actually initiated by community members who are dissatisfied, ironically, with the weakness of just locking someone up. A lot of people say, ‘I want him to be in the circle because I want him to feel real pain. The real pain is what happened to my life as a consequence of what he did. If he’s locked up, he never has to look at me.'”

The circle tries to get to the meaning behind what happened, Barter says. The victim gets to ask why, and the offender has an opportunity to apologize — though that doesn’t always happen, Barter says.

“There’s a very big place for that kind of thing” in Rochester, says John Klofas, professor of criminal justice at RIT. “It fundamentally deals with the difficulty victims have when things are really sort of torn asunder. It really restores the victims, because they get a choice of an active role in this, and I think that’s very important. And the person who commits these acts has to really confront their position in the community, the effect of what they’ve done on the community, and their role in the community moving forward.”

The circle ends when both parties agree on how the offender can make restitution. Duda, from the Center of Public Safety Initiatives, says the agreement can be something as simple as the offender agrees to pay to replace something he broke, or agrees to help clean up the mess he made.

“I think it’s a lot more difficult process for an offender to go through,” she says. “He’s directly told, ‘This is what you did, and this is what will make it right.'”

In the worst cases, offenders may never be able to do enough to physically compensate their victims, but the process does help victims heal and to regain some of the power they lost when they were victimized.

Duda and Klofas say that data on restorative justice does not exist to the depth necessary to fairly evaluate the concept. But they say the research that does exist is promising.

A study commissioned by the British government showed that the more serious the act, the more effective restorative justice is, Barter says.

“Superficially you could say that means that a gang shooting in a community is likely to produce a more cohesive, restorative process than petty theft because there’s more buy-in,” he says.

But that doesn’t tell the whole story, Barter says, recalling an incident at a school that used a restorative circle after one student snatched another’s pencil from her pencil case. It seems ridiculous to call a circle for such a minor thing, he says, until you learn that the pencil case was the student’s last gift from her now-deceased parents.

“So, is it still a pencil?” Barter says. “It’s not the act; it’s the symbolic value that act has. It’s the significance of what we do to each other, not actually what we do that really impacts our lives.”

The restorative processes used in Brazil have reduced offenders’ participation in prison rebellions, he says. And because of their cooperation in the process, the offenders are more likely to earn a place in the few education programs the prisons offer, Barter says.

RIT’s Klofas says having a restorative process available can introduce continuity into a young person’s life. Many small acts are either dismissed or ignored by the criminal justice system, he says, and the young person skates by sans consequences until his record builds up and then the hammer comes down. Having a restorative system means there’s consistency, Klofas says: action equals consequence.

Klofas and other criminal-justice experts have often remarked on the disproportional nature of cause-and-response when it comes to the violence in Rochester’s inner city. Seemingly minor slights like calling someone a name or “he looked at me funny” can provoke an ultraviolent reaction.

Barter says those kinds of insults go right to a person’s pride and generally cannot go unanswered.

“What has been violated when someone looks at you funny?” he says. “My dignity. My power. My authority. My value to the community has been diminished by what you’ve done. That’s a nonnegotiable value.

“I agree with them. That’s an injustice. And not responding to injustice is dangerous. It sends a message that no one counts, nothing matters. No community. No social cohesion.”

Barter says he’s learned that one of the things victimhood is about is recovering power. People can’t stand feeling vulnerable and powerless to control their own well-being, he says.

“Suddenly I’m reminded that something can come in from left field and take away my ability to take care of myself,” Barter says. “There’s an immense sense of vulnerability, and there’s a corresponding energy to close that wound.”

Victimhood can occur as a sudden shock, he says, or as a gradual, creeping sense of disenfranchisement: there’s something about you that makes you less worthwhile than others in the community.

Restorative circles try to use that shock, that energy that goes into craving punishment and vengeance to create a change in behavior, Barter says.

“The change in behavior happens because empathy occurs,” he says. “It might seem strange to think of vengeance as being an attempt to create empathy, but if you look at it in terms of proportional pain, that’s what it’s really about. ‘I want you to know how I feel,’ is what people often say as they are hurting others. ‘You’ll learn not to do that again,’ is something that people often say to justify violence imposed on other people. ‘I want you to get a taste of what it was like to be me.'”

Barter says he doesn’t see a victim’s thirst for vengeance as a bad thing, necessarily.

“I just want to dialogue with them about what will create that sense of what they’re calling closure,” he says. “That sense of changed behavior, the sense that this person lived to know what it felt like. It’s very unusual that someone continues to believe that more pain is going to resolve pain.”

This article appears in Sep 5-11, 2012.