Restorative Justice and the Prosecutor

Fordham Urban Law Journal, Dec 2000

A discussion of restorative justice and its relation to prosecutorial discretion. The article gives examples of the restorative alternatives to traditional criminal punishment and argues that such alternatives are an effective means of providing justice.

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Restorative Justice and the Prosecutor

FORDHAM URBAN LAW JOURNAL [Vol. XXVII Restorative Justice and the Prosecutor Frederick W. Gay Follow this and additional works at; https; //ir; lawnet; fordham; edu/ulj - The dream of courtroom battle leads many young lawyers to the door of the prosecutor's office. Seeking to test newly acquired litigation skills against more seasoned opponents, the recent law school graduate relishes the opportunity to wear the white hat in a classic confrontation of good versus evil. It is this "us versus them" mentality that permeates the traditional prosecutor's office. What the young prosecutor soon finds, however, is an active caseload of 200-300 cases in which the facts of today's new cases blur with those of yesterday's and last week's. For every trial on the misdemeanor docket there are ninety-nine other cases that the prosecutor must handle by way of initial appearance, arraignment, pre-trial conference and guilty plea. Overcrowded prisons, jails and community corrections facilities force the young prosecutor to realize that not every "bad guy" is going to do the time deserved. This "injustice" begins to gnaw at his core beliefs. He begins to see himself trapped in the endless paper chase that he swore he would never be party to. He fields endless calls from defense attorneys who seem to have only one "wrongfully accused, innocent" client. He covers for every other prosecutor in the office on a moment's notice because prosecutors are said to be "fungible." He sits quietly by as countless victims air their complaints about insensitive cops, defendants getting away with murder, prosecutors too busy to return phone calls, unfeeling judges and the failed "system." Our young prosecutor whose only goal was to save the world soon finds himself daydreaming about packing his bags and going over to the "dark side" of private practice and the billable hour. It is within this context that the emerging concept of restorative justice may have a chance of taking root in the prosecutor's office. * Bureau Chief, Polk County Attorney's Office 1991-Present; Created and implemented the following programs: Restorative Justice Center, Victim Offender Reconciliation Program, Youthful Offender Program, Structured Fine Program, Informal Probation Program, Unemployment Fraud Program, Jail Court Docket, Bad Check Restitution Program, Welfare Fraud Program, Truancy Court Program, OWl First Program. There are many prosecutors now beginning to realize that the prosecutor's office is a key player in the management of the criminal justice system. Governmental funding sources are requiring prosecutors to accept responsibility for their actions. The prosecutor must now be an active participant in pre-trial detention decisions that impact jail overcrowding and in post guilty plea/trial sentencing recommendations that impact general system overcrowding. Some prosecutors now recognize that they are the gatekeepers of the system. Their charging decisions, pre-trial detention positions and sentence recommendations go a long way in deciding which defendants flow to what level of supervision and/or incarceration. Once the prosecutor accepts his role as gatekeeper, it is a short jump to the paradigm shift from the "trail 'em, nail 'em, jail )em" mentality that pervades the traditional criminal justice system, to the restorative justice mind set that considers every case in light of what outcome best addresses the needs of the victim, community and offender. The restorative justice concept provides another path to pursue, one that addresses public safety demands while meeting the needs of the victim and the community far better than the traditional system. This approach is more personal and involves both victim and community. It is more focused on reparation, restitution and accountability with less emphasis on punishment alone. Restorative justice is much more concerned about remedying harms than exacting punishment. RESTORATIVE JUSTICE IN POLK COUNTY The Polk County Attorney's Office in Des Moines, Iowa, presently operates several programs that are restorative in nature. However, the office did not embrace the concept of restorative justice at any specific point in time. Rather, the recognition that restorative justice principles have a place in the way prosecutors participate in the delivery of justice has evolved slowly over the past decade, with the building blocks of a restorative justice practice being laid in a somewhat haphazard fashion. In 1978, the Polk County Attorney's Office established the Polk County Neighborhood Mediation Center (the "Center") as a site where the resolution of relatively minor disputes could occur outside the formal legal process. From 1978 through 1990, the Center, contracting with trained mediators, handled hundreds of cases annually. Most of these cases would otherwise have worked their way to Small Claims' Court or the Simple Misdemeanor Court. In 1991, the Polk County Attorney's Office made the decision t (...truncated)


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Frederick W. Gay. Restorative Justice and the Prosecutor, Fordham Urban Law Journal, 2000, Volume 27, Issue 5,