44 The New York Review
the murderers of Trayvon Martin, an
unarmed seventeen-year-old, or of Ah-
maud Arbery, an unarmed twenty- five-
year-old jogger, deserve the option?
Must we imagine that even police offi-
cers who kill unarmed civilians do?
It may strike many as offensive and
even unspeakable not to pursue the
harshest possible punishment for po-
lice officers who brutalize and kill.
But arguably police violence would be
suited to the explicit and far-reaching
discussion encouraged by restorative
justice. The reliability with which pros-
ecutors decline to prosecute and juries
to acquit officers—the killers of Phi-
lando Castile, Alton Sterling, Tamir
Rice, Freddie Gray, Eric Garner, and,
less well known, Eleanor Bumpurs,
Aiyana Stanley-Jones, Tanisha Ander-
son, and Aura Rosser all never went to
prison—is a sign that our “justice sys-
tem” cannot deliver what it promises.
Whether the restorative justice process
would or should result in any reduction
of sentence here is a divisive question.
Still, if victims’ families were open to
the process, it might result in police
officers agreeing voluntarily to serve
prison time in exchange for a signifi-
cantly reduced sentence, public con-
fession, and other amends decided by
those families. Officers would for the
first time decline to hide behind tech-
nical legal defenses and instead answer
personally to the grief and anger of
their victims’ families.
There is no direct model for this, but
work by Mariame Kaba and a coalition
of groups on police violence in Chicago
points to what a new structure of jus-
tice might look like: one striking aspect
of that work, the legal scholar Amna
Akbar has written, is the coalition’s de-
cision not to demand criminal prosecu-
tion for officers who routinely tortured
Black people in the 1970s and 1980s,
but to push for a reparations ordinance
that included financial compensation
such as free tuition, for victims and their
families, at junior colleges in Chicago,
job training, counseling, and a public
school curriculum that teaches the his-
tory of police violence.^4 “When I talk
about abolition, it’s not mainly a project
of dismantling,” Kaba has said. “It’s ac-
tually a project of building. It’s a positive
project that is intended to show what
we believe justice really looks like.”
At its core, restorative justice views
crime as an encounter between people.
For offenders, Sered has said, “facing
the people whose lives they’ve changed”
can be a more demanding ordeal than
prison. They may be condemned per-
sonally by their victims and experience
guilt; they must accept responsibility
for their actions no matter how des-
perate the circumstances they were in.
They may have to do hundreds of hours
of community service, or take on extra
jobs to pay for a victim’s therapy. They
must expiate their wrong doing by mak-
ing and fulfilling promises.
But what if they cannot keep those
promises? Imagine an offender who,
for reasons mostly outside his control,
cannot get his life together: due to his
record he cannot get a job; due to a col-
lapsed welfare state he cannot access
food stamps. Expelled from civic life
and under the sway of his vow to the
victim that he will become a produc-
tive citizen, he may become destitute
and self-punishing, or return to crime.
Restorative justice depends on an idea
of individual morality, but without sup-
port from social infrastructure, it may
fail to create lasting change. (For this
reason, activists such as Kaba prefer the
phrase “transformative justice” to “re-
storative justice,” which captures their
vision for broader structural change.)
“Reconciliation may be a moral imper-
ative,” the anthropologist and political
scientist Mahmood Mamdani observed
of the South Africa Truth and Reconcil-
iation Commission, in 1997, “but it will
not happen unless it is also nurtured as a
political possibility.”
Indeed, while Common
Justice offers support
services, connecting of-
fenders to mental health
resources, education, and
job placement, it also—as
many good community
organizations do—fills a
vacuum where the state
ought to be. The failures
of state-funded reentry
programs in the past two
decades are an instructive
example: as the political
scientist Marie Gottschalk
has argued, for men and
women getting out of
prison, such programs—
which often focus on
abilities related to employ-
ability, like social skills
and anger management—
obscure the structural re-
ality of a deindustrialized
labor market in which few
jobs provide a living wage.More than many peo-
ple may realize, the battle
to end mass incarcera-
tion hinges on reining in
prosecutors’ astonishing
power. Just as police vi-
olence goes largely un-
punished, so too does the
rampant and well-documented mis-
conduct of prosecutors. In one case, a
Louisiana prosecutor hid blood analy-
sis that would have exonerated a man
who went on to spend fourteen years on
death row. He was never reprimanded.^5
A 2006 study by the American Bar As-
sociation of almost 1,300 accusations
of malpractice across the US showed
that none resulted in professional disci-
pline. As Emily Bazelon (sister of Lara
Bazelon) writes in Charged: The New
Movement to Transform American
Prosecution and End Mass Incarcera-
tion (2019), the post hoc exonerations
of 1,800 people through DNA evidencereflect a culture of prosecutors “break-
ing the rules to nail down a conviction.”
About 95 percent of cases pursued by
prosecutors end with the defendants
giving up their right to trial and plead-
ing guilty—even when they are inno-
cent. When a prosecutor can charge
someone anywhere between two years
and a life sentence for some crimes, a
defendant often feels pressure to plead
guilty to a lesser sentence to play it
safe. Contrary to the totemic image of
the courtroom trial, with its dramatic
cross-examinations and tearful ad-
mission of the truth, many defendants
merely sign a piece of paper professing
their guilt.Paradoxically, such a system can call
into question the choice to participate
in a program like Common Justice:
How voluntary is it really when the
only other option is Rikers Island? It
might add one more tool to the prose-
cutor’s already large arsenal—they are
the ones, after all, who decide which
cases are eligible for restorative justice.
Still, I share the more optimistic view
of Seema Gajwani, a prosecutor in the
Washington, D.C., restorative justice
program, who writes in the New York
Law School Law Review, along with
Max Lesser, that the practice “allows
prosecutors to hear a more complex
accounting of the crime than what ap-
pears on the pages of a police affidavit.”
Gajwani invited prosecutors, who
tend to be skeptical of restorative jus-
tice, to observe the process. They heard,
for instance, a Black teenager describe
what it felt like to be harassed by police
officers; they heard a person who broke
into a car talk about how he was home-
less and had not eaten for two days. In
the latter case, the offender offered to
pay restitution, but the victim, an Afri-
can immigrant, declined, wanting him
to provide proof that he had gotten a
job instead. One prosecutor, writes
Gajwani, was struck by how the victim
appeared “empowered by the ability to
show grace.” She adds, “This experiencestuck with [the prosecutor], and months
later, she said that ever since, she viewed
restitution differently, and routinely
questioned her assumptions about what
would make a victim whole.”
One hope is that prosecutors will
come around to observing the distinc-
tion drawn by the mother of a murder
victim in Florida in 2010, who went
through the restorative justice process
with the killer, her daughter’s boy-
friend. She supported a term of five
to fifteen years rather than a life sen-
tence, provided that he commit to ed-
ucating others on domestic violence
and other issues that were important
to her daughter. The prosecutor, who
wanted a life sentence, ul-
timately charged the boy-
friend with twenty years,
along with the conditions
that her family had ad-
vocated. The mother ex-
plained, “We didn’t push
for a lighter sentence. We
wanted to push for a more
meaningful sentence.”Ten years ago, a former
student of mine pled guilty
to manslaughter and was
sentenced to three to
ten years in an Arkansas
state prison. Patrick was
eighteen and had no prior
criminal record. Typi-
cally, he stayed away from
fights, but in this instance
he had stabbed and killed
Marcus, an older man, in
an effort to protect his
sister. In prison, Patrick
wrote letters to Marcus’s
mother, apologizing; he
told me he prayed for her
as much as he did for his
own mother. It was only
fair, he said, if the victim’s
family wanted him dead.
Overwhelmingly, people
like Patrick, and others I
have met teaching in pris-
ons, reject any explana-
tions that might seem to make excuses
for what they have done, preferring to
embrace their remorse.
Since reading Until We Reckon, I
have thought more deeply about Mar-
cus’s family. One memory that comes
back to me is that his mother wanted
to meet Patrick: she wanted to tell him
that she stopped believing in God after
her son died. She wanted Patrick to
know that she had persuaded her other
son not to kill him. She did not forgive
Patrick, but she did not want him to die.
She wanted him to get on with his life.
Those like Patrick who have com-
mitted violent offenses and wish to
make amends need many forms of sup-
port to help them return to productive
lives, including employment, friend-
ship, transportation, and education.
Restorative justice does not guarantee
success. But it can provide an essential
kind of relief, a reprieve from the self-
punishing guilt that remains even after
offenders have served their time. What
is it to keep living knowing the loved
ones of those you hurt wish you were
dead? What is it to feel the weight of
their doubt—doubt that your remorse
is genuine, that you can do and be bet-
ter? How would it change you to meet
your victim’s mother? What would it
mean for her to see you, speak to you,
and urge you to live your life? QTitus Kaphar: Jerome IV, 2014Titus^ Kaphar/Jeremy^ Lawson(^4) See Amna Akbar, “How Defund and
Disband Became the Demands,” NYR
Daily, June 15, 2020, and Peter C. Baker,
“A Legacy of Torture in Chicago,” The
New York Review, July 2, 2020.
(^5) The case went to the Supreme Court,
which threw out the $14 million jury
judgment in the defendant’s favor,
stating that there was no pattern of
misconduct in the district attorney’s
office. John Thompson, the defendant,
stated, “I don’t care about the money. I
just want to know why the prosecutors
who hid evidence, sent me to prison for
something I didn’t do and nearly had
me killed are not in jail themselves.
There were no ethics charges against
them, no criminal charges, no one was
fired.” Elsewhere he remarked, “If I’d
spilled hot coffee on myself, I could
have sued the person who served me
the coffee. But I can’t sue the prosecu-
tors who nearly murdered me.”