Defense vs. dialogue: Restorative justice at BxD?

NEW YORK CITY — When I first sketched out my research project, I imagined I’d find more parallels than contrasts between BxD’s work and restorative justice (RJ) practices. Hanging around these public defenders for a few weeks has cured me of this notion.

Each year the UC Berkeley-based Human Rights Center awards summer fellowships to students from University of California campuses, to enable them to work with human-rights organizations in the U.S. and abroad. Several current Human Rights Fellows, including law student Kony Kim, have agreed to share their experiences this summer, with regular updates from the field to be published on the NewsCenter.

Kony Kim on justice alternatives in the South Bronx

1. Why NYC: Taking the train and pursuing justice
2. Teamwork and tangible gestures: Holistic defense at BxD
3. Defense vs. dialogue: Restorative justice at BxD?
4. Community intake: bite-sized empathy at BxD
5. Drawn to a career softer and subtler than law, but driven to deal with injustice in the world
6. Quality time vs. constant crisis: Artwork and legal work as two prongs of human rights practice

Also reporting:

Ugo Edu
on reproductive choice in Brazil

Rochelle Terman
on women living under Muslim laws

It’s true that both BxD attorneys and RJ programs, unlike our punitive justice system, prioritize humane treatment of the accused, which involves empathetic listening and the pooling of diverse resources to repair lives. But in an RJ program, this ethic of compassionate collaboration is broad, embracing the needs of victims and offenders alike. In contrast, BxD — being a public defender office — serves alleged offenders, period. RJ clearly sits in tension with BxD’s mission to shield the accused from the accusers.

RJ programs take various forms, some focusing on offender rehabilitation and others on victim services. But the most powerful RJ programs bring together all parties affected by a particular crime, creating informal spaces for open dialogue apart from the judicial system. Through these dialogues, people can work together toward remedies that the law can’t or won’t provide.

In contrast, BxD attorneys’ task is to fight for clients already caught in the system. As passionate public defenders, they don’t trust this system; they’ve taken this job because, as they see it, the accused don’t stand a fair chance. To safeguard client rights, they must filter any facts that will be aired in court. Accordingly, for public defenders, the only place for open dialogue is in confidential meetings with their clients.

Thus, the justice that BxD attorneys pursue is “restorative” in the limited sense that, when their fights go well, their clients’ basic rights are restored. Working in a state-controlled, adversarial system, BxD attorneys stand staunchly with the underdogs, and the opposition — the prosecution and its allies — is never to be assisted or trusted.

I know, I know. The contrast between Kum-ba-yah dialogue and courtroom warfare seems obvious. What was I thinking? Did I seriously expect to find an army of public defenders embracing the harmonious ideals of “restorative justice”?

Actually, I think my initial hunch — that BxD and RJ share important and inspiring elements — is still worth something, even as I shift my focus from commonalities to contrasts. But my initial research question has inverted itself; now I’m exploring how and why BxD’s work looks so strikingly different from RJ practice, even while sharing key values.

Intuition, and my trial-watching experience so far, suggest that BxD and RJ models may differ for structural reasons: in their quest to improve lives, BxD attorneys operate in roles defined by the system, while RJ practitioners’ roles in some ways transcend the system. My ongoing experiences here at BxD, especially as I start helping with trial preparation this week, will help me flesh out this nascent theory.

I promised vivid descriptions, so I must apologize for yet another entry that’s more reflective than narrative. I didn’t foresee having a paradigm shift to explain! But thanks for bearing with me. In my next entry, I’ll try to provide more of a window into the day-to-day action here.