Restorative Justice and the Prosecutor
FORDHAM URBAN LAW JOURNAL [Vol. XXVII
Restorative Justice and the Prosecutor
Frederick W. Gay
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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)