This article is the second part of a special report on the juvenile justice system in Berkeley and beyond. Read part one here.
Thousands of hours of research have been devoted to understanding the school-to-prison pipeline. Many now recognize that harsh disciplinary actions such as zero-tolerance policies, as well as high levels of suspension and expulsions in schools, lead students directly into the criminal justice system — especially students of color. Gradual recognition of this issue has led to an increase in the use of restorative justice practices in both schools and the juvenile justice system.
Restorative justice has been operating in schools for the past two decades. It originated in indigenous cultures in the South Pacific and Americas, later being pioneered by Australia as a practice to solve conflicts in schools. “Many people know restorative justice as something that schools are using in this country to address conflict and harm that happens between people,” said Alex Busansky, co-founder of the nonprofit Impact Justice.
In recent years, Berkeley High School (BHS) has implemented its own restorative justice program, along with school districts in Oakland, New York City, Philadelphia, and other cities across the country. David Gibson was initially the only restorative justice counselor at BHS, but the program has since expanded. The current restorative justice coordinators are Stacy Shoals and Eddie Estrada.
The restorative justice program at BHS includes three different tiers, each devoted to a different situation where restorative justice is needed. According to Shoals, “Tier one means to provide community-building … Tier two is when we do restorative circles in response to harm that has taken place … The tier three [is] anything where the harm is more impactful or serious.” This three-tiered approach is also used by the Oakland Unified School District (OUSD).
This past year, restorative justice at BHS was questioned by both students and parents when it was used as a response to the outcry over rape culture at BHS. Parents and students felt that it was traumatizing and destructive to have a victim of rape sit in the same room as their rapist during group sessions and restorative justice circles.
However, Abby Lamoreaux, a junior in Berkeley International High School (BIHS), explained that group counseling sessions with restorative justice elements can be useful to some students. Lamoreaux is the president of Harm Education Response Organization (HERO), a peer-run drug education club at BHS. HERO supports using restorative justice as a response to students found on campus with drugs or vapes, as opposed to a zero-tolerance policy or a punitive system.
“For a student [who has] never been in a [one-on-one counseling session] before, it is really not going to change anything because they don’t have an emotional connection to who they’re talking to,” Lamoreaux said. “In a group, if you know someone, or you’re hearing other people’s stories, that can be really impactful on your own. So I think in some ways, I would believe that a group setting is better.”
The main way restorative justice is used at BHS is in disciplinary action. When a student commits an offense on campus, the student disciplinary section of the California Education Code generally directs a student’s punishment. However, the code sometimes allows for discretion. For example, per Education Code Section 48915(a)(1), expulsion should not be recommended for robbery or extortion. Unless there are extraordinary circumstances, other means of correction should be employed.
According to Claudia Gonzalez, the BHS dean of students, whenever there are situations where it is required for the school to suspend a student, BHS also couples the suspension with restorative justice. “We can’t just say we’re going to suspend you, and things are going to get fixed. That’s not the point. If you’re gonna learn and change [your] behavior … there has to be another intervention attached to it,” Gonzalez said.
Shoals also considers restorative justice to be a more effective form of disciplinary action. She explained, “[In] restorative justice, you sit down, I sit down, and then we get to the bottom of it. … It’s more effective [in] clearing up and getting to the root of the actual problem.” Shoals added, “I do definitely believe in restorative justice for some things, and it is definitely a step in the right direction.”
Over the years, the use of restorative justice has expanded into the juvenile justice system. Impact Justice is a nonprofit that focuses on creating innovative new solutions to fixing our criminal justice system. One of the organization’s many focuses is restorative justice. Busansky said, “Partnering with district attorney’s offices and community-based organizations, [we use restorative justice] so that young people under the age of 18 who’ve committed serious offenses, … rather than going through the traditional system that we know, go to a community-based organization.”
Impact Justice partners with organizations across the country to implement restorative justice programs. One of these partnerships is with Community Works West (CWW), an organization located in the Alameda and San Francisco counties. CWW works with minors who have been arrested for low-level felonies or high-level misdemeanors through the process of a confidential Restorative Community Conference (RCC). The RCC is a collaborative effort with the district attorney (DA).
The process of an RCC is similar to the restorative justice conferences used in schools. A circle is held with the minor who committed the offense, the person who was harmed, and family and community members. “In a facilitated conversation with other people there, [restorative justice professionals] try to get a better understanding of … the people who have been harmed and have caused that harm … What are the action steps that the person can take?” said Busansky.
The people in the restorative justice circle develop an accountability plan for the minor who committed the offense. These accountability plans are used to create a more personalized penalty for an offender, as opposed to incarceration. Once the youth completes the plan, the DA closes the case and the charges are not filed.
A report by the George Washington University and the Department of Justice showed that on average it costs $43,000 per year to hold one youth in the traditional juvenile justice system. Restorative justice, on the other hand, has only a one time cost of $4,500 per youth. While restorative justice doesn’t directly address the racial disparities present in the juvenile justice system, it can be used to close the racial gap between minors who are incarcerated. Impact Justice does this by focusing on specific zip codes and communities of color. “By ensuring that the people that you’re offering [restorative justice] to are people of color and communities that are highly impacted,” Busansky explained, “you end up … decreasing the percentage of [people of color], ultimately, that are going into the justice system.”
The data indicates that restorative justice is effective. According to a California state report from 2018, Californian prisoners released between 2013 and 2015 had a recidivism rate of 46 percent, compared to a much lower 8 percent for defendants who went through the Neighborhood Court restorative justice program in the same years instead.
Additionally, restorative justice is not only more effective for the defendant, but also for the victim. In fact, victim satisfaction with restorative justice is over ninety percent. Busansky said, “In the traditional system, victims … frequently feel that they have no voice, that what the criminal justice system does to the defendant doesn’t meet their needs as a survivor. And restorative justice, because of the process, is able to get to those needs.”
In 2005, one census conducted by Gordon Bazemore and Mara Schiff revealed 773 restorative justice programs in the American justice system. Since then, organizations like Impact Justice and Community Works West have helped that number increase exponentially. “I think that, ultimately, restorative justice will be our go-to response for how we address harm and crime,” Busansky said. “Whether it’s in schools or workplaces or the justice system, people have found [that restorative justice] is working.”