By Grace Headrick

In 2019, a plea agreement was reached on the eighth floor of the Durham District Attorney’s office. Donald Fields Jr. murdered his father three years prior over a seemingly innocuous fight about the placement of the TV.[1] After  consulting from the family, the parties  agreed that Fields would plead guilty to second-degree murder and receive a 20-year minimum sentence.[2] The Assistant District Attorney handling the case, Kendra Montgomery-Blinn, took the first step toward restorative justice. She asked Alex Fields, the victim’s brother and the offender’s uncle, if he would like to read the psychological evaluation of Fields that the defense had prepared. Alex read the report detailing Fields’ anger management issues, lack of mental maturity, history of witnessing violence, and recent violent propensities.[3] Alex said that “it read true”; he didn’t “want to lose him [] to the system.”[4] Alex agreed to a restorative justice alterative—one sanctioned by a court but not within one.[5] Over the next four years, the family participated in restorative justice circles where they discussed the effect of Donald’s actions.[6] At first, the family participated in the circle without Fields while Fields received therapy during his pre-trail incarceration. Fields eventually joined the circle and conversation began to unfold.[7] Over time, the family felt that Fields had changed and taken accountability; they felt that sufficiently healed and that Fields could return home.[8] 

Restorative Justice (RJ) programs and techniques have been making their way into the American criminal justice system for over three decades.[9] As of 2020, 264 total laws had been passed in 46 jurisdictions spanning 45 states and the District of Columbia.[10] There is, however, a stark lack of uniformity across jurisdictions as they legalize restorative justice.[11] Leading scholars in the field warn that “in present form, restorative justice cannot be viewed as a panacea for all the ills that plague the criminal justice system.”[12] The incorporation of RJ in the criminal system is still in its infancy, and many questions remain unanswered. One of the largest, perhaps, is whether RJ processes should be used for violent crimes, such as homicide. As proponents of legalizing RJ continue their research and incorporation efforts, violent crimes should be included in RJ because the need for and benefits of these alternatives are especially crucial for the individuals affected by violent crime.

Restorative Justice does not offer a uniform blueprint to criminal justice reform; rather, it employs a “radically different way of viewing, understanding, and responding to the presence of crime within our communities.”[13] It is an alternative approach. The retributive criminal justice approach serves justice by punishing the offender. In contrast, the restorative justice approach serves justice by healing the individuals—both victim and offender. [14] The umbrella of RJ covers a variety of techniques, philosophies, and practices; but there is no universal theory of restorative justice or agreed upon method of enacting it.[15] In the criminal context, however, it typically involves a meeting or series of meetings between the stakeholders where the offender expresses remorse and the victim has the opportunity to the heard.[16] As a group, a set of actions are decided upon that could “repair the harm and prevent re-offending.”[17]

One version of this approach that has been used in the United States since the late 1980s is Victim-Offender Mediation (VOM) programs. VOM aims to provide victims the chance to confront the person that harmed them and participate in the process of reaching a restitution agreement. VOM allows the offender an opportunity to acknowledge the harm they caused and express true remorse.[18]

Traditionally, the goal of VOM programs was to reach a restitution agreement, but a more recent “humanistic” VOM approach re-orients the goal to be healing for all parties.[19] This new approach—falling squarely within RJ principles—resulted in the Victim Sensitive Offender Dialogue (VSOD) model. The VSOD model has three phases.[20] First, all parties involved are consulted on multiple occasions as to whether mediation could be a possibility.[21] If all parties agree to participate in mediation, then an agreement is made between the parties regarding the expectations of the mediation.[22] Second, an actual dialogue between the parties occurs, including a pre-dialogue briefing and a post-dialogue de-briefing.[23] Third, the facilitators meet with the parties to discuss any needs that were not met, collect feedback, and hopefully close the case.[24]

VOM is typically used in violent criminal cases post-conviction to achieve therapeutic goals for victims and offenders.[25] The general trend across the country is to exclude more violent crimes—like domestic violence and homicide—from RJ processes.[26] Post-conviction VOM and similar RJ practices, however, result in higher reports of victim and offender satisfaction after serious violent crimes.[27] This indicates that VOM and similar practices have potential to improve victim and offender experiences during earlier stages of litigation.

Some proponents of providing RJ alternatives in cases of serious crimes argue that this is a space where restorative justice is crucially needed.[28] Violent crimes, due to their nature, can result in increased shame for both parties.[29] RJ practices provide a path for the offender to take responsibility for their actions and rely on their community to hold them accountable. This can often transform the offender’s shame into something more productive.[30] RJ can also help victims process common feelings of was this my fault by giving them space to express those emotions.[31]

Another success of RJ is the potential to deliver a result that feels more just. When a violent crime has occurred, the need for “fairness” in the process of delivering justice is crucial.[32] A foundational principle of RJ is respect for the parties throughout the process.[33] The voluntary nature of participation, opportunity to be fully heard, and reliance on mutual agreement for reconciliation maintain the dignity of participants and ensure transparency in the process.[34] Research shows that people who have participated in RJ processes felt they were more “fair and legitimate” than criminal court processes.[35]

Efforts to incorporate RJ into the criminal system have primarily focused on low-level, nonviolent crimes.[36] While there are legitimate concerns to including serious crimes in this effort, the victims and offenders of violent crimes should not be forgotten in restorative efforts. Instead, the activists, scholars, legislators, and jurists that are currently shepherding RJ through its infancy in our criminal system must keep its applicability to violent offenses front of mind. Alex Jones will never fully recover from the grief of losing his brother. But because one District Attorney believed that Don was worthy of a RJ alternative, Jones didn’t have to lose his nephew in addition to his brother. Instead, Jones was empowered by the chance to heal his family.

[1] Oliver Laughland, Faced with a Violent Killing, a Family Chooses Forgiveness Over Prison, Guardian (June 26, 2023), https://www.theguardian.com/us-news/2023/jun/26/restorative-justice-murder-charge-prison-don-fields.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Thalia Gonzalez, The State of Restorative Justice in American Criminal Law, 2020 Wis. L. Rev. 1147, 1148 (2020).

[10] Id. at 1156–57.

[11] Id.

[12] Id. at 1147.

[13] Mark S. Umbreit et al., Restorative Justice: An Empirically Grounded Movement Facing Many Opportunities and Pitfalls, 8 Cardozo J. Conflict Resol. 511, 518 (2007).

[14] Linday Fullham et al., The Effectiveness of Restorative Justice Programs: A Meta-Analysis of Recidivism and Other Relevant Outcomes, 00 Criminology & Crim. Just. 1, 2–3 (2023).

[15] Adriaan Lanni, Taking Restorative Justice Seriously, 69 Buffalo L. Rev. 635, 640 (2021).

[16] Id. at 644.

[17] Id. at 637.

[18] Bhavya Mahajan, Victim-Offender Mediation: A Case Study and Argument for Expansion to Crimes of Violence, 10 Am. J. Medicine 125, 132 (2017).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 138.

[26] Gonzalez, supra note 9, at 1164.

[27] Mark S. Umbreit et al., Victim-Offender Dialogue in Violent Cases: A Multi-site Study in the United States, 2007 Acta Juridica 22, 23 (2007).

[28] Olwyn Conway, Grasping the Third Rail: Restorative Justice and Violent Crime, 81 Wash. & Lee L. Rev. 1379, 1445 (2024).

[29] Id. at 1424–25.

[30] Id.

[31] Id.

[32] Id. at 1428.

[33] Id.

[34] Id. at 1431–32.

[35] Id. at 1434.

[36] Id. at 1475.