We desperately need organizational reform of the US police force: an institution that has turned a blind eye to misconduct for decades. The public will no longer tolerate the police enjoying special privileges nor will the dangerous and unpredictable nature of their work be regarded as a valid reason for avoiding accountability. While body cameras will serve as the vehicle for transparency, paying attention to the non-obvious will be the catalyst for change. Changing the organizational culture through the implementation of restorative practices and utilizing restorative justice to address alleged police misconduct will increase public trust and improve morale within departments wrestling with abrupt changes. But, before we can implement these changes, we must challenge the customary function of restorative justice within law enforcement contexts.
Until recently, law enforcement officers enjoyed heroic reputations as guardians of the people, agents of safety and first responders willing to sacrifice their lives for a noble cause—a reputation earned through countless acts of heroism in the face of crises unknown in most other professions. Now, their reputations are teetering. Justifications like they have a tough job or it’s only a few bad apples are starting to ring hollow. While separating the deed from the doer is a fundamental component of restorative reform work, it is not appropriate in the aftermath of police brutality.
According to police scorecard, a website dedicated to advancing the public transparency of police departments, between 2016 and 2018, only 1 in 14 civilian complaints against California police were adjudicated in the civilians’ favor: “In 81% of jurisdictions, civilians reporting misconduct had less than a 1 in 5 chance of the complaint being ruled in favor by police investigators.” In complaints involving racial bias or discrimination, the chances declined to 1 in 64. The internal affairs investigator, whose role is to objectively assess alleged police misconduct, sometimes provides a helpful resource. However, when internal investigations dismiss most civilian complaints, they only serve to further distance police from the communities they claim to serve.
In “Conflicts as Property,” Nils Christie examines how highly industrialized societies outsource conflict to professionals, who monopolize the resolution process. An investigative process that neglects authentic reconciliation between cops and civilians undermines public trust. And, it relegates police to the status of automata, of mindless warriors—tellingly, chiefs often refer to their officers as troops and weapons trainers use words like war to refer to potentially dangerous interventions. Restoring humanity to a militarized institution, while also providing justice for those who have suffered misconduct should be the first steps for departments exploring ways to become more service oriented. Reducing the scope of the internal investigator’s role is a productive starting place.
Restorative Practices or Restorative Justice
Restorative practices is a new social science, which incorporates interpersonal processes and applications. According to Ted Wachtel, founder of the International Institute for Restorative Practices, it “includes the use of informal and formal processes that precede wrongdoing, those that proactively build relationships and a sense of community to prevent conflict and wrongdoing.” The fundamental hypothesis is that people are happier and more cooperative when they work with one another, instead of doing things to or for other people. Restorative justice is a subset of restorative practices. Restorative practices include proactive interpersonal processes, while restorative justice occurs in response to harm.
Challenging Restorative Justice Assumptions
Restorative justice (RJ) offers an alternative societal response to crime and harm. It is a healing-centered approach, which brings people together to reconcile their differences, repair harms and reintegrate perpetrators into the community. Unfortunately, it has been mishandled by the criminal justice system, as a substitute for sentencing and other judicial measures. Restorative justice can be co-opted by institutions that use its community-centered philosophy to conceal their continued misuse of authority or to boost their moral status. One common misunderstanding is that it is an ancillary intervention, used by the courts as a diversionary measure or to allow for a reduction in sentencing.
Unlearning Conventional Approaches
Victim–offender dialogue is the most common application of restorative justice outside of a school setting. It brings victims and perpetrators together for reconciliation: agreements are established and some form of restoration usually occurs, in the form of community service. However, when District Attorney offices treat restorative justice as an intervention strategy that depends on victim and offender labels, RJ becomes just another spoke on the procedural wheel. As Sandra Pavelka writes, “Restorative practices are increasingly being incorporated within state statutes and codes. Twenty states specifically address restorative practices, including victim–offender mediation.” This conflates restorative practices with restorative justice.
Victim–offender mediation often mandates that an offender express remorse before the resolution process can begin: this undercuts the authority of the victim, whose recounting of a charged emotional experience can elicit remorse during the actual resolution process. Incentivizing offender participation by threatening increased sentencing if the offender does not take part reduces intrinsic motivation, creates an illusion of accountability and is covertly retributive. Some people naturally admit fault and remorse, but others do not. Those who do not are pushed into the sentencing process. Excluding those who do not initially own up to their mistakes is a common mistake that police departments can avoid if they operationalize RJ as the modus operandi for resolving police misconduct, employing a skilled RJ facilitator who guides, rather than mandates, admission of accountability.
The use of victim–offender dialogue or mediation is not suitable for police cases for two reasons:
- Victim-offender dialogue is court oriented.
- The labels victim and offender are not accurate categorizations of those involved in police misconduct complaints. Because these do not involve sentencing, there is no need for labels.
Two restorative police reforms need to take place right away. First, the police need to implement proactive inter-departmental restorative practices: fishbowl circles, non-violent communication, problem-solving and social and emotional support. Next, police must utilize restorative justice to address police misconduct and racial bias and invite the public into the conversation with officers, hold officers accountable and increase public trust.
Restorative practices include the use of problem-solving circles in place of meetings that report on statistical trends, and social and emotional support groups for officers who have endured significant secondary trauma while on the job. Problem-solving circles can be used to encourage critical thinking. Instead of sessions that focus on policing strategies in high crime neighborhoods, group circles led by trained officers could explore non-violent intervention approaches and disarming communication styles. The fishbowl circle exercise outlined below helps show how this works. Those in the inner ring (the fishbowl) are engaged in a problem-solving process. Those in the outer circle are observing the conversation. One chair in the inner circle is kept free, for anyone from the outer circle who wants to temporarily join in the discussion. The facilitator, who sits in the inner circle, guides the process by summarizing what people have said and clarifying underlying themes. One conversational style with far-reaching implications for policing is motivational interviewing, which pays attention to the language of change and views resistance as an opportunity for engagement. The fishbowl circle provides the perfect template for practicing this skill, for example in the following exercise, called state your change.
State Your Change
- Each participant writes down one change they would like to make, in the form of a short sentence or statement. They do not give any reasons for this change. This can involve either a personal goal, or it can be work-related. For example, I want to get better sleep.
- The facilitator then provides a brief reflection on the use and impact of open-ended evocative questions.
- A participant reads her statement aloud and those who have chosen to be in the inner circle ask open-ended questions.
- The participant responds.
- The facilitator uses reflective listening to model how to respond to certain statements. For example, if someone in the inner circle asks, What are some reasons for wanting to get more sleep? the participant might answer, I want to have more energy for my kid and I want to be less irritable at work. The facilitator might interject: More sleep would help out lives at home and work. The facilitator then explains that she is using such reflections to show the speaker that she is listening to her and that the idea is to truly understand the speaker, not try to get one step ahead of her.
- Those in the inner circle then proceed to ask another open-ended question. Or someone from the outer circle can sit down in the empty chair and ask a question. For example: On a scale of 1–10, how important is this to you?
- The facilitator also points out when people ask closed questions. For example, if someone asks Have you tried to do yoga before bed?, the facilitator could point out how questions like these create what is called a question and answer trap, which encourages short responses and stymies motivation.
- At the end of the process, those on the inner circle return to the outer circle and the facilitator asks a final question that links the exercise to issues at work. For example: How might the use of open-ended questions, and reflections benefit your work as an officer?
- Each participant has a chance to respond.
Restorative Justice Implementation
To implement restorative justice to address police misconduct, follow these steps:
A preliminary conversation is held to create buy-in from participants:
- The facilitator has separate conversations with the officer and civilian a week before the reconciliation conference.
- The facilitator listens to both parties, pays attention to critical insights and guides the conversation towards buy-in, utilizing motivational interviewing.
- The facilitator informs participants of conference procedures.
- Participants identify stakeholders (i.e. people who will attend the conference).
- All parties help to determine the location of the actual conference
A reconciliation conference is held:
- The facilitator uses a sequence of open-ended questions to create engagement.
- The facilitator uses reflective listening to keep the process on track.
- Each party talks to the other about how she has been affected.
- The facilitator briefly recapitulates what has been said and identifies important themes.
- Participants talk about what they need from the other person to make things right.
- If necessary, terms of agreement are established.
- The facilitator has a brief in-person follow up session 2–4 weeks after the conference.
- The police department implements the recommended changes requested by the civilians during the RJ process.
Racial Discrimination Complaints
Employing an internal investigator to handle complaints of racial discrimination is unhelpful. When complaints of racial discrimination are funneled through the police chain of command. Several people, who do not include those most intimately affected by the alleged misconduct, generally attempt to interpret the account of what happened, in the light of legal codes and technicalities. But racial discrimination—which can involve things like specific social contexts and the use of predictive policing in underserved neighborhoods—cannot be fully investigated using jurisprudence that codifies discrimination.
Restorative justice cuts through the red tape. When a civilian files a complaint of racial discrimination, she has the opportunity to address the officer directly, and the officer does not have to work under the added stress of an ongoing investigation. Justice therefore becomes less procedural and more relationship-oriented. During the conference, the facilitator will reflect on essential themes, elucidating the civilian’s account, while assisting the officer to grasp the implications. The photo of President Barack Obama, Sargent James Crawley and Henry Louis Gates Jr. sharing beers after Crawley wrongfully arrested Gates outside his home, which forms this article’s header image, highlights RJ’s healing potential in the aftermath of misconduct.
When the police utilize RJ in response to discrimination allegations, it shows the public that they are willing to learn how their actions may be affected by bias. RJ could therefore restore public compassion for police officers, whose institutional emotional detachment has led to countless instances of thoughtlessness and brutality.
One of the great tragedies of modern policing is the dehumanization of officers through the use of words like force, troops, war and subject. This language reflects a culture more interested in distancing itself from the community it serves than engaging with it. To demilitarize the police, we must start by reshaping the subtle organizational protocols that tacitly allow for increased force, while increasing public trust by rethinking how police hold themselves accountable to public criticism. Police departments have a unique opportunity to practice RJ from an equitable foundation. They need to take it.