February 18, 2021

By Kyla Schweber MARJ'21

Introduction

Restorative justice differs from the traditional adversarial process, which tends to be a very cookie-cutter form of justice. In the current correctional system, an offender commits a crime, and a judge will administer a punishment most likely based on precedent if that person is found guilty. Unlike the adversarial system, restorative justice is not a universal process, it is specific to the community, situation, and people involved.

“Although the definition of restorative justice continues to evolve, it has most commonly been described” as “a process whereby all the parties with a stake in a particular offense, come together to [collectively] resolve how to deal with the aftermath of the offense and its implications for the future” (Eisman, et al., 2020; Marshall, 1996). The affected parties will come together in what is referred to as a peacemaking circle. Depending on the crime committed, the victim may or may not participate. This space is a “safe and controlled environment, with trained facilitators, to allow those affected to share their feelings and opinions” (Marshall, 1996).

Further, “restorative justice is a philosophy and process that defines crime as harming people and relationships, rather than simply violating the law” (Zher, 2002). This process places greater emphasis on the victim’s needs (person who was harmed), the community, and the offender (the person who caused the harm).

This proposal is not a review of judicial training as a whole but a discussion on integrating a more socially relevant education into pre-existing judicial training programs. Restorative justice is making a resurgence, and the training of our legal professionals must reflect these societal developments.

Judicial College of Maryland

There is no “rigorous training program” that prepares future judges for the bench, even those with prestigious legal degrees (Gibney, 2019, p. 141). The offered training programs are “optional and inadequate” for federal judges (Gibney, 2019, p. 138). The programs at the Federal Judicial Center (FJC) include a one-week orientation session with some brief follow-ups and a selection “of educational publications and DVD’s” so, optional, inadequate, and antiquated (Gibney, 2019, p. 138). This lack of judicial preparedness, further exacerbated by a nonexistent training program, is “bizarre to the point of negligence” (Gibney, 2019, p. 139).

Luckily there is a more established judicial training program at the state level in Maryland. Maryland’s Judicial College is considered to be “the premier learning institution for judicial and court education in the country” (Judicial College of Maryland).

More importantly, the Judicial College has a competency-based education system (CBE) (Ibid). CBE is focused on targeting specific skills and identifying gaps to create a more individualized and beneficial educational experience. The Judiciary’s Competency-Based Education and Training System (CBETS) has three-course types: CORE, Specialized, and Related (Competency-Based Education).

CORE “training provides foundational awareness, knowledge, and skills” (Ibid). Once CORE courses are completed, Specialized courses are taken. These classes strengthen professional skills and “enhance performance in targeted areas” (Ibid). Following Specialized classes, a course on “effective communication or mental health disorders would be considered Related courses” (Ibid). While these courses are not “specific to the position itself,” these are the types of situations that judges, and other legal professionals need to have some background in to effectively handle all kinds of situations they may encounter (Ibid).

Teaching a wide range of comprehensive skills and having learning objectives that emphasize “strength-based leadership approaches” will allow future legal professionals to acquire the knowledge and experience needed to apply those skills “as they perform their duties within the court” (Ibid). The Judicial College of Maryland has done an exceptional job identifying the skills needed to excel in certain legal professions and how best to develop said skills through this program. As opposed to just re-teaching criminal law, the focus on skill-building is undoubtedly the path we must be following. However, it's unfortunate that programs like this are not available nationwide, are not mandatory, and do not include any restorative justice components.

It is argued that established American judges who have been on the bench for decades have learned from experience rather than education. “Twenty years ago, a majority of judges would have denied there was any need for judicial training. Today; only a minority would share that view” (Malleson, 1997, p. 656). Relevant experience can be just as, if not more, valuable than training/education programs that teach you how to be a judge. However, it can take quite a while to be considered an expert, and the quality of judicial decisions should not be set aside to allow judges to gain this experience.

Judicial Initiatives

A program that the United States could parallel for judicial training with a restorative justice aspect is the European Forum for Restorative Justice (EFRJ). This program is particularly attractive as it includes a heavy focus on restorative practices (European Forum for RJ). The EFRJ acknowledges that there is no single best practice of restorative justice but understands it to be an evolving approach (Ibid). The EFRJ is focused on implementing restorative procedures to criminal matters, community and school conflicts, family affairs, and, more recently, legal practitioners (Ibid). In 2003, the EFRJ released a report on the “training of legal practitioners in restorative justice” (Delattre & Willemsens, 2003).

This training is a day and a half long program that serves to “promote restorative justice within the judiciary by providing them with the required knowledge of restorative justice and the opportunity to change their attitude” (Id., 2003, p. 4). The training’s ultimate goal is for judges and prosecutors to integrate restorative practices into their daily work.

Something along the lines of the EFRJ is ideally what would be created. An independent and universal training program, with restorative justice woven in. Unfortunately, that would be rather difficult to accomplish at this time because we hardly even train American judges nationwide, let alone training in restorative practices. More realistic, however, would be to include restorative components into pre-existing judicial training programs. For instance, the Judicial College of Maryland could have CORE, Specialized, Related, and Restorative courses.

Assuming that a state has no current training program in place, at the very least, what is needed is a restorative justice-based judicial initiative. Similarly structured to the EFRJ training, I propose a day-long restorative justice training focused on introducing and expanding awareness of all the benefits that restorative justice has to offer to the legal field. Additionally, this day-long training would allow judges to learn how to be more restorative within their role as a legal professional. I spoke with Dr. Linsey Pointer, the Assistant Director at the National Center on Restorative Justice, to roughly structure what this program could look like.

Dr. Pointer suggested that it’s beneficial to start with a group building exercise circle (personal communication, October 27, 2020). This part of the process would be dedicated to introductions and laying out the foundations of the restorative process, for example, teaching how a behavior is a physical manifestation of an underlying need, which isn’t usually apparent on the surface (L. Pointer, personal communication, October 27, 2020).

After introductions and foundations, one skill-building exercise that should be included is that of motivational interviewing (open-ended questions). Dr. Pointer explained how open-ended questions are central aspects of restorative justice, as they help surface the needs behind the behavior. With motivational interviewing, the people affected are invited to speak further about the incident allowing each perspective to be shared and creates a better understanding about what each person needs (personal communication, October 27, 2020).

Other activities, like case studies, could be used to expand on how restorative justice differs from the traditional adversarial process. A case study is a set of facts about a person who caused harm. Here, the group would compare and contrast the restorative process to the adversarial to get a better understanding of the former. Further, another emphasis of this judicial initiative could be learning about all of the available diversion programs, also referred to as pretrial intervention programs. These programs allow the person who caused the harm to take responsibility for their actions, and avoid a criminal record.

The main goal of this program is to challenge how a judge reaches a sentencing decision. The hope is, for example, that a judge uses the skills learned in motivational interviewing and makes a referral to either a diversion program or other peacemaking circle process that best fits the needs of the community, parties affected, and person who caused the harm.

Critiques have argued that altering the way judges do their jobs would undermine judicial independence (Pozen, 2008). While it is correct that a training program would change the way judges do their job, a training program that does not “affect a judge’s performance is not effective” (Pozen, 2008, p.661). Further, “the constitutional role of the judiciary is not under threat from training” because judicial training would focus on the methods judges use to reach their decisions, “rather than their function of balancing the constitutional interest in public affairs” (Pozen, 2008, p. 667).

Conclusion

Although an American version of the EFRJ would be great, a whole refinement of the judicial system in this way seems somewhat unrealistic at this point in time. And what better way to replace a non-existent judicial training program than with a restorative one? A more practical approach would be to have restorative justice added to pre-existing judicial education programs, like the judicial college in Maryland, or creating judicial initiatives with restorative justice coordinators to facilitate the training.

Judicial training “does not undermine a judge’s impartiality but merely improves [their] accuracy in applying the law,” and are given a competitive advantage over their less-educated counterparts (Pozen, 2008, p. 667). Judges making more informed decisions about the best sentencing option, whether that be jail time or making a referral to a specific diversion program that would best fit the need of the individual who caused the harm is the ultimate goal. And with judges making these individualistic determinations, instead of adversarial cookie cutter decisions, they truly become “humane problem solvers,” especially when they integrate restorative practices in the courtroom (Vendananda, 2020, p. 107).

Sources

Cities 101 - Partisan and Nonpartisan elections. (n.d.). National League of Cities. Retrieved October 13, 2020, from https://www.nlc.org/resource/cities-101-partisan-and-non-partisan-elections

Constitution of Maryland. (2020). Maryland Manual Online. https://msa.maryland.gov/msa/mdmanual/43const/html/const.html

Competency-Based Education. (n.d.). Judicial College of Maryland. Retrieved October 20, 2020, from https://webcache.googleusercontent.com/search?q=cache:mOVdCBOICQEJ:https://s3.amazonaws.com/dntstatic//0e8534b4-5cd4-431d-4145-20ff5630f2d3+&cd=2&hl=en&ct=clnk&gl=us

Delattre, R., & Willemsens, J. (2003). Working towards the creation of European training models for practitioners and legal practitioners in relation to restorative justice practices Exchange of Training Models for Mediation Practitioners. European Commission. https://www.euforumrj.org/sites/default/files/2019-11/agisreportmediatorstraining.pdf

Eisman, A.B., Heinze, J., Kilbourne, A.M. et al. (2020). Comprehensive approaches to addressing mental health needs and enhancing school security: a hybrid type II cluster randomized trial. Health Justice. https://doi.org/10.1186/s40352-020-0104-y

European Forum for Restorative Justice. (2020). European Forum. https://www.euforumrj.org/en/agis-1-working-towards-creation-european-training-models-practitioners-and-legal-practitioners

Gibney, B. (2019). The Nonsense Factory The Making and Breaking of the American Legal System. Hachette Books.

Judicial College of Maryland. (2020). Maryland Courts. https://www.mdcourts.gov/aoc/judicialcollege

Judicial Election in the States: Maryland. (2020). National Center for State Courts. http://www.judicialselection.us/judicial_selection/index.cfm?state=MD

Malleson, K. (1997). Judicial Training and Performance Appraisal: The Problem of Judicial Independence. The Modern Law Review, 60(5), 655-667. Retrieved October 26, 2020, from http://www.jstor.org/stable/1096956

Mallory, J. (1832). The Mississippi Constitution of 1832. Mississippi History Now. http://mshistorynow.mdah.state.ms.us/articles/98/index.php?s=extra&id=268

Manning, J. F., & Stephenson, M. C. (Eds.). (2017). Legislation and Regulation Cases and Material (Third Edition). Foundation Press.

Marshall, T. F. (1996). The evolution of restorative justice in Britain. European Journal on Criminal Policy and Research, 4(4), 21–43. https://doi.org/10.1007/BF02736712

Maryland’s State Government. (2020). Maryland Secretary of State. https://sos.maryland.gov/mdkids/Pages/GovernmentJud.aspx#:~:text=District%20Court%20judges%20are%20appointed,decisions%20in%20the%20District%20Court.

Pointer, L., & McGoey, K. (2020). Needs and Feelings Iceberg. RestorativeTeachingTools.Com. https://mailchi.mp/409bf4d55a31/may-restorative-teaching-tool-5839004

Pozen, D. (2008). The Irony of Judicial Elections. Columbia Law Review, 108(2), 265-330. Retrieved October 4, 2020, from http://www.jstor.org/stable/40041759

Vendananda, N. S. (2020). Learning to Heal: Integrating Restorative Justice into Legal Education. NYLS Law Review, 64(1), 95–113. https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1450&context=nyls_law_review

Zehr, H. (2002). The little book of restorative justice. Good Books