[music]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Now we continue our election series, 30 Issues in 30 Days. Today, we're up to the second of eight consecutive issues around racial justice, issue 16 as it falls, Restorative Justice. In concept, restorative justice can offer a way for a wrongdoer and the person wrong and the community that both are a part of to find their way to justice and seeking to repair the harm and not merely punish. We're including it in this set of racial justice issues related to the presidential campaign because its advocates see it as a way to disrupt America's mass incarceration, mostly of Black men, and when used in high schools as a way to disrupt what's called the school to prison pipeline and the disparity in the application of suspensions and expulsions as a punishment. Different presidents, different parties have different relationships to this issue. It's an issue in the presidential campaign as you might've heard in this speech that Andrew Pollack, whose daughter, Meadow, was murdered in the Parkland school shooting in Florida. Pollack gave this harsh assessment of restorative justice at the Republican Convention.

Andrew Pollack: Far-left Democrats in our school district made this shooting possible because they implemented something they called "restorative justice". This policy which really just blames teachers for students' failures, puts kids and teachers at risk and makes shootings more likely, but it was billed as a pioneering approach to discipline and safety. I was just fine with the old approach to discipline and safety. It was called discipline and safety, but the Obama-Biden administration took Parkland's bad policies and forced them into schools across America. When President Trump rescinded Obama's guidance on restorative justice policies, he put an end to that.

Brian: Joining us now to talk about the use of restorative justice in schools and in criminal courts and as an issue in the presidential campaign, I'm joined by Emily Bazelon, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, Truman Capote fellow for creative writing and law at Yale Law School and author of the book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Hi, Emily. Welcome back to WNYC.

Emily Bazelon: Hi, Brian. Thanks for having me.

Brian: You've written about restorative justice in detail. Please tell the listeners. Can you explain what is meant when criminal justice reformers say "restorative justice", beyond what I said in the intro?

Emily: Yes, sure. Restorative justice is this pretty broad concept and the idea is that there are some kinds of wrongdoing in which there's a solution that could be less about just punishing the person who committed the offense and more about trying to heal both the party that was injured and the person who committed the offense. A coming together, an expression of remorse. Sometimes it involves some form of restitution like paying money or doing something for the other person. It's really a search for alternatives outside of our usual framework for criminal justice, which is very punishment oriented that tries to imagine that if you bring people together, it may be better for the parties who are victimized and for the perpetrator because you can improve everyone's chances and hopefully add something to the health of the community.

Brian: Andrew Pollack there at the Republican Convention was referring to its use in schools. The Obama education and Justice Department had issued a quote, "School discipline guidance package to enhance school climate and improve school discipline policies/practices," as it was called in 2014. That did encourage schools to use restorative justice and other means to change the statistics that showed that far more kids of color were being suspended and expelled and referred into the criminal justice system under so-called zero-tolerance policies. What was the backdrop of that Obama policy? What was actually happening in schools and was the Obama restorative justice in schools policy binding on schools in any way?

Emily: What the Obama folks did was they were trying to adjust this problem of lots of suspensions and expulsions, especially for students of color. We've heard about this for years, this problem of equity, that there are some acts that Black and brown kids do and they're seen as more threatening and violent and aggressive and maybe if a white kid does it, the punishment is less. The Obama administration was worried about that and they were trying to give schools some other tools for addressing misbehavior and restorative justice in some places like Oakland has had a pretty good track record in making those gains. The research and analysis about the Obama program is still ongoing, but right. As you're saying, this wasn't a binding set of requirements that the Obama administration was imposing, they were offering programs. There was a program that the Broward County Public Schools that Parkland is part of had tried to adopt. That didn't mean that the Parkland shooter wasn't actually punished for the disruptive and concerning behavior that he exhibited before the shooting. I think there's a tingle here where you see a possible program offered as an alternative and then for people who want to find something to blame in the event of a tragedy that's not just like blaming the presence of guns or the perpetrator himself. This was like an unavailable target.

Brian: For what it's worth, NPR's Anya Kamenetz, education reporter, reported on this and pointed out that Broward County, Florida, where Marjory Stoneman Douglas High School is, made changes to improve its record on suspensions. Before the Obama administration took its action on restorative justice and we can't ever dismiss the grief or rage of a father who lost his daughter to a murder, but is he on solid ground when he blames restorative justice policies for the massacre? You just referred to this a little bit just now, but have you looked at Marjory Stoneman Douglas or the national context?

Emily: I think what's true about Marjory Stoneman Douglas that there were red flags for this particular student who carried out the shooting that were missed. He was sent to in-school suspension, received out-of-school suspensions and he was ultimately expelled. I think before the shooting, there was this explicit threat on a YouTube account named after the shooter. In retrospect, you see something like that, and that seems like a terrible error. It doesn't have anything to do with the restorative justice program at the school though.

Brian: Listeners, our topic is Restorative Justice. If you've participated in restorative justice in schools or court settings or in any other context, call and share your experience. 646-435-7280, 646-435-7280 for Emily Bazelon. Emily, as Pollack said in his clip from the RNC, President Trump, and Betsy DeVos, the education secretary rescinded the Obama guidance. What did that actually change?

Emily: Mostly that took away from schools is the alternative ideas for addressing racial disparity and suspensions and expulsions. I think what the Trump administration is saying is we don't see a problem here and we don't think that these alternatives for addressing school discipline are a good idea. We want schools to go back to dealing with this in a traditional way. That's really the impact that that rescinding of the guidance had.

Brian: Even though they rescinded the guidance that Obama had put out there, that doesn't mean that local school districts ended their restorative justice programs, does it?

Emily: No, not necessarily. Although when you take federal funding away from a program, then that of course can have a ripple effect about whether the programs can afford to stay in place and whether other school districts adopt them.

Brian: Looks like we have a middle school principal calling in. Let's talk to Ben in Brooklyn. Ben, you're on WNYC. Hi, there.

Ben: Oh my God. I feel so privileged because usually, I can't call in because I have to listen to you on the podcast. Yes, I've seen restorative justice firsthand and I think there's some misconceptions that the gentleman from Florida has which is that it's not a consequence. I think kids often try to avoid the circles because it can be really challenging to have those conversations and unearth what's going on beneath that then resulted in whatever conflict took place. I think just people have a real misunderstanding about that this is the easy way out or it's gentle or it's not tough love in some way. It's just more effective.

Brian: Do you have an example that you've been involved with personally, perhaps?

Ben: Yes. One example, there was a sixth-grader at my previous school who was very large for the sixth grade, a large student, a girl. She had been teased in elementary school about her weight. There was some mild teasing going on as she lashed out at this other student. I don't remember exactly the details. It was a number of years ago and instead of just punishing that student or punishing her because I think she got physical with the girl who was teasing her about her weight, we brought them together, we sat them down and in that context, in a safe space, she was able to share how she had been teased in elementary school and this other girl who had been teasing her understood. I think she had a cousin who had been teased for the same reason and then that issue just didn't come up again. I think a more traditional punishment if the overweight girl had just been suspended, she comes back, she resents that other girl for teasing her, nothing underneath has been addressed and we just go back into the same cycle of-- probably escalates down the line, but instead we nipped it in the bud.

Brian: Where in your experience as a principal, and that's a great story, would the line be if there is an identifiable line for some kind of behavior that wouldn't be applicable because again, the Parkland dad is bringing it up in the context of a kid who was showing violent tendencies, that's more than teasing.

Ben: The DOE discipline code, there are certain things that restorative justice isn't as much of an option. Yes, like bringing a weapon to school, it is a huge escalation and while restorative justice and doing a circle may play a part at some point like as a re-entry circle, if the student serves a suspension and then comes back into the same community, it wouldn't be the primary go-to. There are certain times when it's such an egregious violation of a community norm that you can't just do restorative circle and that's it. In my experience, it has to be a part even for those big violations. I've never had an actual weapon in my school. A kid had an air gun at one point, which sort of counts, but not a real gun or anything. I've never gotten to that point, but I think there are things that are so extreme that a child does need to be removed from the community, but those are very, very small fraction of what we see on a normal day at a middle school.

Brian: I'm curious to your original point about it not being comfortable, not being the easy way out necessarily in the case that you were just describing or any other that you're familiar with or involved with. In that case, how uncomfortable was it for the girl who got confronted by her victim?

Ben: It's really uncomfortable. Kids have to unearth some of the cruelty that just happens in middle school and it's part of what goes on, but they have to face it head-on. They can't getaway. I think getting into suspension or a lunch detention or these slaps on the wrists are very much easy ways out because the kids don't have to confront what they did. I have another example, a student who slapped a girl on a wrist in a class who is an African American girl. He was, I think, Iranian. He made some comments about like, "I whipped you like a slave." Which is super offensive and super damaging and easily could be suspendable, but instead of just letting them off easy and suspending them for three days or five days or whatever it would be, brought him together, brought in his parents into the circle, her and the kids bring allies with them. They bring another child with them to support them emotionally. The girl was able to share the effect that that had on her and it was a really powerful experience for that boy and I'll venture to say-- I haven't kept in touch with him, but I think he definitely learned from that experience in a way that he wouldn't have had he not had to confront the harm that his words did to this girl. I think it empowers to the extent that they're victims often in middle school. It's really conflict. Both people are at fault, but when they're victims, it really empowers the victim to take ownership and to feel like they have agency in the situation rather than just a passive wait for the system to punish the kid. The kid comes back, I'm still scared of the kid kind of thing.

Brian: Ben, we are so lucky that today's a school holiday, so you were able to make this call. Thank you very much.

Ben: Oh my God. I'm so lucky. This is amazing. It's a dream come true, Brian. Thank you.

Brian: [chuckles] Glad you were on. Emily Bazelon, what were you thinking as you heard that story about restorative justice, a couple of stories really out of the mouth of a middle school principal?

Emily: I just love those illustrations because Ben was able to speak from experience and really explain how this is supposed to work. It's so crucial to understand that this isn't about letting anybody off. It's about trying to dig a little deeper and get people to really reckon with the harm they've done. You can see that play out in a school where kids are going to have to keep interacting with each other all the time. If someone who's being mean can be made to stop and think about what effect they're having, why that might be coming from, that can be a much better longer-term solution. Honestly, those same lessons like you can apply them in the criminal justice system too, it's different if they're more serious offenses being committed, but the underlying principle really does translate.

Brian: We have to take a break. When we come back, we're going to take another caller who says his daughter is in high school, was bullied and maybe the experience wasn't 100% positive with the model that we're talking about. Stay with us, Brian Lehrer on WNYC. [music] Brian Lehrer on WNYC as we are up to issue 16 in our 30 Issues in 30 Days presidential election series. Issue 16 in a series of eight in a row that we're doing on racial justice issues in the campaign is Restorative Justice. President Obama had issued a restorative justice set of guidelines for schools to follow rather than conventional punishment to try to reduce the racial disparities and who gets suspended and expelled and things like that. President Trump has rescinded the Obama guidance and so it's an issue in the presidential campaign. Our guest for this is somebody who has looked deeply at restorative justice for her reporting, Emily Bazelon, New York Times Magazine writer and author of the book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration because it's an issue in the criminal justice system, not just in education. Let's take another caller. Tommy in Harlem. You're on WNYC. Tommy, thanks so much for calling in.

Tommy: Good morning, Brian and Emily. Thank you very much for having me on. I just wanted to say the following. I'm a Black man. I have Black children and they're in the city school system and I am all for restorative justice, but I think the major problem is that it should be independently and specifically [unintelligible 00:17:09] the circumstances. My daughter as a freshman high school student was bullied by another student who had been in the process of bullying people for two prior years. My daughter was threatened with weapons and the school was aware of it. In fact, one of the assistant principals actually witnessed it, and instead of disciplining the student, instead of taking the student out of the school, they wanted my daughter to sit down and mediate with this other student. They wanted her to actually sit with her oppressor, the person who victimized her, and sit there and talk about it. Now I understand that we don't want to have a school to prison pipeline. The problem though is that if it's not specifically apply restorative justice type of programs like these, can actually be more harmful in keeping victims in the same environment with the oppressive actually criminal incidents. My daughter was actually assaulted and it happened for two years.

Brian: Wow. Emily, want to talk to Tommy?

Emily: Yes, I think that is a really good example of how tricky this issue can be and how careful-- the devil's in the details. It's all about the application. One thing when I was writing a lot about this subject in schools and addressing bullying that I heard over and over is that if you ask kids to sit down and mediate and one kid has a lot more power and is the harm doer, and the other kid is in a situation where they're basically being asked to say like, "Everything's okay now," that is very unfair and counterproductive because you're not recognizing this power imbalance between these kids who have to keep being in the same environment. You're basically forcing the victim to be part of a situation that they don't really have control over. I don't know if this was exactly true for your daughter, but I think in situations like this, the child who's the victim needs more protection and there has to be a recognition that they can't necessarily speak up for themselves because they're being victimized.

Brian: Having been through this Tommy-- Oh no, go ahead Tommy. You go.

Tommy: I'm sorry. Yes, she was exactly right. That was a major problem that my daughter had nowhere to turn because she did everything she was supposed to do. She reported it to us. She reported to the school. The school actually got verification and then on top of all that, school officials admitted to us that they were aware because this same other student had been part of their program for several years and had done this to several other people, but because they didn't want to "throw" her route in society and take her out of the school environment, which they thought might be more problematic for her. They wanted my daughter to participate in a program to solve the circumstance per the law, which of course made my daughter a victim again.

Brian: Would there have been a best way to handle it in your opinion that could have spared your daughter that experience, but also not put this girl out into the criminal justice system?

Tommy: I think so, but I think part of the problem is that DOE with District 75 circumstances that those don't work too well for they're afraid to take what appears to be a full-functioning student and to put them in that environment if they think [crosstalk] alternative. My situation is that this other student was kept in my daughter's school and every day had to see her but if she could have been removed from my daughter's school, and taken somewhere else where she could have gotten that other type of support, whether it could have been psychological, emotional or have you, and maybe easily return to the same school or a different school, that [unintelligible 00:21:05] better. To keep her in the same environment where she's known as an oppressive student, she's known to victimize other people and then have the victims that have to stay in that same environment, I think was totally offensive to us with justice.

Brian: Tommy, thank you so much for your call. I hope you and your daughter are doing okay now. Thank you. Thank you. Emily, I guess that touches up on a whole other set of issues that we won't have time to really explore meaningfully right now, but that's how much to separate kids who have emotional or mental health problems as was characterized and put them into what things like what New York City calls District 75 for kids with the more exceptional special needs and how to what lanes to go to keep them mainstreamed.

Emily: Yes, these are really hard questions and we aren't hearing all the sides of this particular story so it's really hard to judge. One thing I wanted to flag for New Yorkers is that there is some restorative justice happening in the courts through an organization called the Center for Court Innovation, which is working, I think still mostly in Brooklyn and they piloted a restorative justice program in Red Hook at the Red Hook Community Center there, which is an alternative court and they are taking that into other places in Brooklyn and studying it. Trying to use it as a way of diverting teenagers from jail and other court-imposed punishments, but then also just trying to really figure out what the results of this are, how helpful is it? What impact are we having?

Brian: John in Manhattan. You're on WNYC. Hi, John.

John: Hey. How are you doing, Brian? As a prosecutor, I do think that restorative justice could be a really great alternative because I don't really think anyone can say with a straight face that the system we have now really does much for public safety or making victims feel good. The problem I see is that, maybe with a school, because the kids are all already, for lack of a better word, captive to a community where they're there together already under the supervision of a principal. When you have the criminal justice system, it's already an incredibly long tedious process from crime to the court system, to when it actually goes to trial or there's a plea. Unless there's really a total wholesale re-imagining of how that system works, or alternatively, total commitment buy-in from both the district attorneys and defense attorneys, I just don't see how it can work because defendants have properly lots of constitutional protections throughout the court system. However, that really delays things a really long amount of time. It's very hard to see how you're going to get defense attorneys to get on board with anything that could possibly prejudice their client and anything that just keeps it going and going and going, which they already do with a trial strategy very often is to delay and victims get disillusioned from the process. I just don't see practically how it can work without just a total change in the system we already have. I don't see that from any of the progressive prosecutors that are already in the office.

Brian: All right. Emily is the author of a book on progressive prosecutors and somebody who can put on your Yale Law School teacher hat, what do you say to John?

Emily: I totally hear that because for restorative justice to work, it needs to happen more in real-time. If you have defense lawyers understandably asserting all of their client's rights that could be an impediment to anything really moving forward. One thing that I've seen in this court in Brooklyn for teenagers is-- These are low-level offenses and so I think defense lawyers there have been more willing to waive some of the rights to try the programs in a, not pre-charged, but a pre-prosecution mode where you haven't given up any of your rights. The charges are still out there, but you're trying to do this early deferral that could get the charges dropped. If you set it up earlier that way procedurally, then there's a better chance of things happening in a more timely fashion. I'm sure that it's true that defense lawyers, for more serious offenses, are nervous about how that's going to work. That said, there is another really amazing program in Brooklyn run by Danielle Sered that does restorative justice for serious violent felonies. It's very small and victims and their families have to agree to participate along with the accused. It's very specific, but in that program, they've been able to get around some of these procedural barriers, I think.

Brian: John, any last thing to say?

John: No, that was a pretty good answer.

Brian: [chuckles] Thank you very much.

Emily: Thanks.

Brian: How about that? That's the first time in talk radio history that a caller responded that way to a guest's answer.

Emily: That was very kind. I appreciated that.

Brian: In the criminal justice system, there are different challenges than in schools is you and he were both laying out. We talked at the beginning about how this was discussed at the Republican Convention. There isn't that we can find a mention of the words restorative justice in the Biden campaign platform, except to encourage Central American governments to use it in a roundabout way to make it less likely for people to flee corruption and injustice in their home countries and try to come to the United States and seek asylum. I also read that the Biden and Sanders campaigns got together and came up with their recommendations for a unity platform. A lot of our listeners will remember that and restorative justice is not one that Biden adopted though I think that it was a term used by Bernie Sanders. Are you familiar with the politics of it at that level within the Democratic Party?

Emily: I'm not sure how it didn't make it over from the unity platform onto Biden's platform, but one thing that happens over and over again with restorative justice is that it gets treated as like the embroidery around the edges of the criminal justice system and of reform rather than really central. I always feel like that is such a missed opportunity. For one thing and the prosecutor who just had on, spoke to this, almost everyone who goes through the criminal justice system, victims very much along with defendants are disappointed in it. They find it really hard to deal with, victims often feel ignored and things take forever like that prosecutor was saying. It just seems like there really is an opportunity here to try to do better and yet I find that restorative justice often gets treated as like some like extra thing after we get all the basics figured out and I think that's really just too bad.

Brian: How would you put it then in the larger context of criminal justice reform or leaning into a progressive prosecutor model in the larger conversation that could be a contrast between the Trump and Biden campaigns.

Emily: I think it could be central, and there are some progressive prosecutors doing this. Chesa Boudin who's the DA in San Francisco. He is really interested in restorative justice and trying to widen its uses, including in cases that involve some kind of domestic violence or even sexual offenses. This has really been for a long time a third wheel in the victims' rights arena, but there are these ongoing situations in which advocates want people who are victims of domestic violence or intimate partner violence to leave those relationships, but sometimes those relationships continue. It's possible that restorative justice could have some role in helping people have healthier relationships. That's pretty controversial in a lot of places, but it's something there's interest in, in San Francisco. I think, in general, if we provided more funding for studying these programs and developing pilot programs like that one that Danielle Sered is doing in Brooklyn, you could see a lot of potential for this, but it's a root change. It's like talking about taking a lot of the money or some of the money we spend on the police and providing it to social workers or people with alternate conflict resolution skills. It's like a whole different way of thinking about wrongdoing and punishment and consequences.

Brian: Emily Bazelon, staff writer for The New York Times Magazine. She's the Truman Capote fellow for creative writing and law at Yale Law School, author of the book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, and co-host of Slate's Political Gabfest podcast. Thank you for joining us for issue 16 in our 30 Issues in 30 Days election series. This is number two of eight in a row we're doing right now in this stretch on racial justice issues in the presidential campaign. Tomorrow, we'll be talking about the defund or reform the police movement. Emily, thanks a lot for this. Up next, speaking of justice, we're going to talk to John Dickerson who's been paying attention to the first morning of the Amy Coney Barrett confirmation hearings. Oh, John Dickerson, co-host of the Slate Political Gabfest. You know that guy, Emily?

Emily: I've met him once or twice. I've talked to him a little bit. I'm so glad he's coming on.

Brian: The Gabfest well-represented on The Brian Lehrer Show this morning. Emily, thanks again.

Emily: Thanks so much. [00:31:00] [END OF AUDIO]

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.