You are the owner of this article.
You have permission to edit this article.
Edit
top story

After 'painfully slow' start, restorative justice program tries to reset

  • Updated
  • Comments
  • 9 min to read
Patrick Heneghan

Patrick Heneghan, Cheshire County’s director of restorative justice and victim/witness services, in his office Thursday.

Two years ago, a group of volunteers set out to do justice differently in Cheshire County.

The program itself was modest. Certain low-level defendants, accused of things like shoplifting or alcohol violations, could be diverted out of court and into an alternative process, sparing them criminal records that would later weigh them down. But the ideas behind it were big. Organizers hoped to nudge the legal system away from its focus on guilt, punishment and shame toward a model that emphasizes healing and making amends — a philosophy known as restorative justice.

It was the type of reform that would gain more attention nationally a year later, after a police officer murdered George Floyd. But as calls to rethink public safety spread across the country, Cheshire County’s restorative justice program was languishing. It had handled just a handful of referrals, to the frustration of organizers.

In America’s highly decentralized criminal-legal system, reform often depends on intensely local factors. Cheshire County’s program had at least some buy-in from the relevant officials. But decisions about which cases to take — as well as sometimes-differing views about when restorative justice could be a true alternative to court — appear to have limited the program’s reach.

In the past year, Cheshire County has taken steps to strengthen it. The county attorney’s office now has a paid employee whose portfolio includes restorative justice. And the program has accepted its first two felony-level cases this year, a significant step up from the petty offenses it started with, though Cheshire County Attorney D. Chris McLaughlin says he doesn’t see it becoming an alternative to prosecution in many such cases.

“I am cautiously optimistic that the restorative justice program will be taking off, and will be a very successful program,” said Cheshire County Commissioner Robert J. Englund. “And clearly it was very slow, painfully slow, in getting started.”

‘Not imposed by a judge’

The Cheshire County Restorative Justice Program’s core organizers — Leaf Seligman of Peterborough, Bridget Hansel of Keene and Sandy Swinburne of Marlborough — connected through classes that Seligman, a Peterborough-based writer, educator and restorative justice advocate, taught at Keene State College.

Seligman and Hansel

Leaf Seligman, left, and Bridget Hansel, two of the organizers of the Cheshire County Restorative Justice Program, stand outside Cheshire County Hall in this file photo from June 2019.

The group approached McLaughlin — the county’s chief prosecutor — about trying restorative justice at the county level. He was receptive to them handling some low-level cases as an alternative to court, they said. While Seligman had broader ambitions for restorative justice, she was willing to start wherever they could get buy-in, she said.

It launched in April 2019 as what’s known as a diversion program.

Diversion, or referring certain criminal cases out of the standard legal process, takes many forms and doesn’t need to involve restorative justice. It can involve a referral to counseling or services, a requirement to do community service or simply a probationary period of good behavior.

Generally, a key goal of diversion is to give people a chance to avoid a criminal record — which can make it harder to get jobs, housing and education — while reducing the huge number of criminal cases, many of them minor, taking up court time and administrative resources.

In the Cheshire County initiative, diversion took the form of successfully completing a restorative-justice process — a model Vermont has used for decades.

Advocates of restorative justice describe crimes as violations of relationships, ruptures in the community that community members should try to mend. Rather than seeking to prove guilt and determine a proper punishment, restorative justice identifies the harm that was done, what the victim needs to move forward and how the person who caused the harm can seek to repair it.

That plays out in structured conversations between the defendant, trained volunteers and — if they choose — the victim or other affected people, such as relatives or neighborhood residents. It’s meant to focus on the people harmed by a crime and get the person who committed it to reckon with how their behavior hurt others.

That person must own up to what they did and commit to specific actions to make things right, which could include restitution, work in the community, an apology or tackling the root causes of their behavior through counseling.

“Accountability — the restorative world, you have to demonstrate it,” said Patrick Heneghan, the county’s director of restorative justice and victim/witness services, who was hired in October. “It’s not imposed by a judge.”

A slow start

As Cheshire County’s program started up, McLaughlin made clear it would be limited to minor cases like shoplifting, underage alcohol violations and driving on a suspended license — situations with either a corporate entity as a victim, or no victim at all.

Cases with “non-corporate victims of felonies or serious misdemeanor offenses” are an “entirely different animal” and would require the involvement of his office’s victim/witness coordinators, he wrote in an email to Seligman and other stakeholders.

“I do not intend to put a damper on people’s enthusiasm for the CCRJP, but I just want to make sure it is clear what can be done with the program at this point,” he added.

Two weeks later, Seligman wrote to County Administrator Christopher C. Coates that she found it “a little disheartening” that the program wouldn’t be able to work with actual victims. As she told The Sentinel around that time, her goal was not just to divert people away from court, but also use restorative justice to resolve conflicts — like a bar fight that leads to simple assault charges or a person who steals from their family to buy drugs.

McLaughlin said at the time that he didn’t object to such cases being handled through restorative justice in principle. But it would require staff time to work with victims, and his office’s two victim/witness coordinators were already stretched thin, he said.

By the end of that June, about three months in, there had been no referrals, and the county commissioners were wondering why.

The decision to offer restorative justice was ultimately up to individual prosecutors in the local misdemeanor courts, not all of whom work for the county attorney’s office. Prosecutors generally have wide discretion in how they handle cases, including whether to prosecute them at all, making them key gatekeepers for diversion.

McLaughlin sent those prosecutors several emails about the new program over the following months. “Just a gentle reminder that this program is an option for certain cases,” he wrote in a June 26 email, noting that the county commissioners were asking him about the lack of referrals. “Please consider referring those cases that you feel are appropriate.”

The program got its first case a week later — a woman accused of providing alcohol to her girlfriend, who had not yet turned 21, according to emails reviewed by The Sentinel. A second referral occurred in October. But by January 2020, with no additional cases, Seligman and Hansel were expressing concerns it had stalled.

McLaughlin, meanwhile, said he was hearing from front-line prosecutors that few defendants were interested — in part because it was limited to such minor offenses that it often made more sense for a defendant to accept a slap on the wrist from the court.

At an August 2019 commissioners’ meeting, according to the minutes, “McLaughlin said that part of the problem with the lack of potential participants is that the program is focused on very low-level infractions (fineable violations) where it is easier to just pay a fine and not be involved in a lengthy restorative process. He said that the higher misdemeanor and felony crimes where jail time can be avoided through a diversion program such as restorative justice would be the only way to immediately add more people but the program is currently not open to that level of charges.”

It’s unclear how often prosecutors were offering diversion. McLaughlin said he heard from them anecdotally but wasn’t tracking that systematically, though he asked them to report those numbers in a July 2019 email.

Rick Carpenter, Jaffrey’s police prosecutor, said he has offered restorative justice in several cases and all the defendants accepted, though one was returned to court after failing to follow through. Other district-court prosecutors did not respond to requests for comment.

In May 2020, Seligman was contacted about a felony case — though not, it turned out, to offer an alternative to prosecution.

The case involved someone charged with preparing the method by which she and her partner attempted suicide. Seligman thought it was a “family systems kind of issue” better handled in a restorative setting than a courtroom, she said recently. But the prosecutor had not referred the case to diversion; rather, Cheshire County Superior Court Judge David W. Ruoff had recommended the family contact Seligman and Hansel for help facilitating supervised visits, according to court records. When Seligman asked the lawyers involved to clarify her role, she was told that any restorative process the family might do would have no bearing on the case’s outcome.

In a long email to Ruoff and other stakeholders, Seligman laid out her concerns. She said that while she was willing to help however she could, “there is a limit to what I/we can do on a volunteer basis.”

The volunteers, she went on, could facilitate a restorative process, “but if that has no bearing on whether the defendant might face jail time or fines or a criminal record, I don’t understand how we are moving away from a criminal legal system that compounds harm instead of ameliorating it. Providing pro bono social work, while important and noble work is not the intent of our CCRJP.”

In advance of a Zoom meeting soon after, Coates, the county administrator, let Ruoff know Seligman planned to ask about the group, in her words, “not being given a chance to implement restorative justice.”

In response, Ruoff said prosecutors, not judges, held the cards. “Restorative Justice is an alternative to prosecution, under Leaf’s model,” he wrote in an email to Coates. “Thus, the gateway to the program is the prosecuting authority. Not the Court. I cannot compel the State to agree to forego prosecution of a case (even when I really think it should go to [the] restorative justice program).”

Ruoff, who has since transferred to Rockingham County, confirmed through a spokesperson that he thought that case should have gone to restorative justice, but the prosecutor did not.

In an interview, McLaughlin said his office was never going to decline to prosecute a case of that nature.

“It wasn’t being referred as a diversion case because it was a serious event,” he said.

Taking the next steps

That October, the restorative justice program took a step forward with the hiring of Heneghan — who had joined the team as a volunteer the previous year — in the newly created position of director of restorative justice and victim/witness services.

The job, based in the county attorney’s office, met McLaughlin’s request for another victim/witness coordinator to share the workload, while also advancing the commissioners’ interest in restorative justice.

“I’ve got a foot in two camps,” Heneghan said. Helping victims navigate the court process gives him insight into the legal system, he said, as well as a window into upcoming cases. “And then I’m thinking on the other side, ‘Wow, this has great restorative potential.’ ”

Patrick Heneghan

Patrick Heneghan, Cheshire County's director of restorative justice and victim/witness services, outside County Hall on Thursday.

Hansel and the other organizers said they think it’s made a difference to have someone in an official position, advocating for restorative justice from the inside and educating attorneys.

“He’s sort of the extra nudge that they need,” Hansel said.

The focus has also shifted from petty misdemeanors to cases with higher stakes.

The program handled its first felony-level referral this winter. Three young people had gone into an empty house that was up for sale and caused thousands of dollars in property damage. In lieu of prosecution, they participated in a restorative “circle” — via Zoom, of course. Heneghan said the homeowner declined to participate directly, but agreed to write a statement about what the house meant to him and how he felt about the damage.

“When I read it out to the individuals who had committed the harm, you could see a transformation,” he said. “They had no idea that property damage has an impact on a human being.”

The trio paid restitution, wrote apologies and did cleanup work in the community, and their charges were dropped, Heneghan said.

The program has just started to work on its second felony case, a domestic violence/reckless conduct incident, which like the vandalism case could result in a dismissal, according to Heneghan.

Heneghan said restorative justice can grow alongside the existing legal system, as a forum for healing at any stage of the process — not just as a pretrial alternative to prosecution. He recently offered it to two individuals who were already sentenced and participating in the county’s behavioral health court program (they declined). Returning to society after prison is another opportunity, he said.

McLaughlin said he doesn’t see restorative justice being used to divert many felony cases, but as an option alongside the regular court process. “It’s just a component of a criminal case that can be utilized by victims and defendants who are interested in it,” he said. “It’s not gonna drive necessarily what a prosecutor decides to do.”

A prosecutor’s aim is “to end up with a just result, and that isn’t always just focused solely on the victim,” he said. “I mean, there’s general deterrence, specific deterrence, rehabilitation and punishment. Those are all legitimate sentencing factors that have to be taken into account in determining how to resolve a criminal case.”

If a defendant engages meaningfully in a restorative process and tries to make amends, that might be one factor a prosecutor weighs, he said. “But a straight-out felony with a victim, if you do restorative justice, the case goes away — that’s going to be a small number is my guess, if any, really.”

Seligman said she understands her views of justice and accountability differ from those of many legal professionals, and it takes time to change minds. “We continue to try to meet the county wherever the county will meet us,” she said.

At the same time, she is looking beyond the legal system, working to root restorative justice in the community more broadly, as a way to resolve conflicts in schools, workplaces and neighborhoods — a vision Heneghan also shares.

“Certainly there are prosecutors that are arguing to consider some cases for referral, and that’s wonderful, and I want to applaud them,” Seligman said. “And I want to acknowledge that any time any prosecutor considers doing that, that’s a paradigm shift.”

“I believe that it’s hard,” she added. “It’s a glacial pace to ask people that are embedded or entrenched in a system that’s adversarial and retributive to just wholeheartedly embrace a worldview that is not.”

This reporting was supported by a grant from the nonprofit Solutions Journalism Network. The Sentinel retained full editorial control.

Paul Cuno-Booth can be reached at 352-1234, extension 1409, or pbooth@keenesentinel.com. Follow him on Twitter @PCunoBoothKS