The aim of restorative justice is to make victims whole
'I think I’m looking for two things, one, that the victim is going to be better off, and two, that the defendant isn’t going to reoffend'
When their 19-year-old daughter Ann was shot by her fiancé 11 years ago, Kate and Andy Grosmaire knew instinctively the only path forward was mercy.
The devout Tallahassee couple had come to regard Connor McBride like a son and were friends with his parents, but that’s not why they chose to forgive him, even after Ann succumbed to her injuries.
“We didn’t forgive Connor for his sake, we forgave Connor for our sake,” said Kate Grosmaire. “If we had not forgiven him, we would have gone to prison with Connor.”
Knowing Connor McBride would have to pay for his crime, but opposed to a life sentence, the Grosmaires took the advice of Jacksonville attorney and ordained minister Allison DeFoor and hired a “restorative justice” facilitator.
Both couples described their experience in a June 25 seminar, “Restorative Justice in Criminal Practice,” sponsored by the Alternative Dispute Resolution, Criminal Law, and Government Lawyer sections, and the Florida Restorative Justice Association. It may be viewed here.
The free, three-hour webinar is moderated by veteran trial attorney and FIU Law Prof. Scott Fingerhut and features a panel of national experts and Florida Restorative Justice Association founder Kelly McGrath, a Tallahassee attorney and certified family law mediator.
Restorative justice is a practice with roots in indigenous communities. It has been defined in different ways, experts say.
“To simplify, restorative justice involves the victim in the process of crafting a resolution to a criminal proceeding where the offender is willing to take responsibility and account for [their] actions,” said Jacek Stramski, immediate past chair of the Government Lawyer Section. “The focus is primarily on making sure the victim is made whole, restored, as much as possible in the process.”
Generally, restorative justice requires a perpetrator to admit responsibility, meet with the victim and community representatives, listen to the consequences of the crime, express remorse, and agree to make reparations.
The first segment of the webinar, “An Introduction to Restorative Justice,” is moderated by Edith Georgi, a St. Thomas University College of Law professor who spent 35 years as an assistant public defender in the 11th Circuit.
Georgi said restorative justice is more empowering for victims than traditional criminal prosecutions.
“When there is a violent offense, there is a bond formed by the offender and the victims of that offense,” she said. “Until that bond is addressed completely, or in some fashion, healing can’t begin.”
Restorative justice is just beginning to take hold in Florida.
Panelist Robert Burrs, executive director of the Conflict Solutions Center of Santa Barbara County, California, estimates that there are 40 programs in Florida that use some form of restorative justice.
A 2020 report by the Florida Legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) found restorative justice programming for youth at the local level, in some residential Department of Juvenile Justice facilities, and in a pilot program at the Florida Department of Corrections.
But Florida has very few statutory provisions, and there are challenges to its widespread use, the report found.
“The Legislature could consider creating programs in FDC and DJJ and creating a council to guide and monitor restorative justice,” the report states. “Barriers for the development of restorative justice include a lack of guidelines, limitations on victim and offender contact due to no contact orders, logistical issues for face-to-face meetings when the victim and offender are far apart, funding, and staffing.”
The Grosmaires said their restorative justice facilitator worked with Second Judicial Circuit State Attorney Jack Campbell, who at the time was a lead prosecutor, as well as Connor McBride, his parents and defense attorneys, and a local priest, to arrange a restorative justice circle at the Leon County Jail.
Immediately after the shooting, Connor McBride drove to the police station, turned himself in, and tearfully confessed. He apologized to Kate Grosmaire when she visited him in his holding cell, and she told him he was forgiven.
Campbell was hesitant to pursue restorative justice at first, the Grosmaires said, but then relented. The restorative justice session at the Leon County Jail lasted five hours, and was at times, “excruciatingly painful,” said Kate Grosmaire, who is an adjunct professor and author.
Andy Grosmaire, who is chief of enforcement with the Florida Office of Financial Regulation and a Catholic deacon, said after learning the painful details of the crime, he no longer felt guilty for not being able to protect his daughter.
“In the end, it did give us what we needed, it satisfied us both,” he said. “After listening to what Connor said, I realized that there was nothing that I could have done.”
After the session, Campbell offered Connor McBride two options for a recommended sentence, a straight 25 years, or a 20-year term followed by 10 years of probation, with three conditions — that he take anger management classes, agree to speak publicly about teen dating violence, and perform community service in “areas that Ann would have, had she lived,” Kate Grosmaire said.
Connor McBride chose the latter and has since begun meeting some of the conditions, she said. He has taped a public service announcement that appears on the Florida Restorative Justice Association website and taken anger management classes in prison, she said.
“We have full faith that having this restorative justice circle has made a difference for him,” she said.
Michael McBride, a senior data base administrator for the Florida Department of Transportation, said he spoke with his son before the seminar and offered to relay a message.
“His answer was simply, tell them it works,” he said.
Studies show recidivism rates are lower for perpetrators who go through the restorative justice process, although the OPPAGA study also cautions that “there are important limitations to research in this area, including self-selection bias and lack of randomized controlled trials.”
One challenge is making sure a defendant’s rights are protected during the restorative justice session, experts say.
Connor McBride’s restorative justice circle was conducted under procedural Rule 3.171 (Plea Agreement Conference), said McGrath.
Connor McBride was assured that anything he said in the session would not be used as evidence. It couldn’t have been conducted as a mediation, McGrath said.
“In Florida, there is no mediation for criminal matters,” she said. “That needs to be changed.”
Most restorative justice circles employ an “MOU” or memorandum of understanding with prosecutors, said panelist and University of Miami law school Prof. Donna Coker.
“The prosecutor agrees that no charges will be filed, not only against the responsible person, but against anyone who is participating in the restorative justice process, including any statements that are made in the preparatory stage, and the intermediate stage, and the follow-up stage,” she said.
Marsy’s Law, the victims’ rights amendment, may pose another challenge to widespread adoption of restorative justice in Florida, according to the OPPAGA study.
“Due to a lack of a definition of restorative justice in Florida, it is difficult to determine how Marsy’s Law or other victims’ rights laws would affect the expansion of restorative justice programming,” the report states. “However, other states that adopted Marsy’s Law do have restorative justice programs at the state or local level; these states include California, Georgia, Illinois, and North Dakota.”
The study suggests legislation may be needed to protect the identity of victims who participate in restorative justice sessions.
Panelist and University of South Carolina School of Law Prof. Aparna Polavarapu said she founded a restorative justice initiative in her state that is in high demand among advocates for domestic violence victims.
“The rates of partner violence in South Carolina are absolutely the worst in the country,” she said. “South Carolina is maybe not the first state people think of when they think restorative justice, but it’s being requested by the people who have suffered harm, who do not experience relief,” in the traditional criminal justice system.
Restorative justice principles are also being used in the South Carolina school system, she said.
“It’s really turning into a movement,” Polavarapu said. “There’s a real push to try and find better outcomes, to try and find ways to get people reintegrated into the community.”
Panelist Michael Becker, an assistant state attorney in the Eighth Judicial Circuit, acknowledged that most front-line prosecutors are probably unfamiliar with the restorative justice concept and would be hesitant to employ it.
“I think it’s really going to depend on having the right case,” he said. “I don’t think that any prosecutors are going to be interested in dropping a case because the defendant says he’s sorry.”
Prosecutors will require assurances, he said.
“I think I’m looking for two things, one, that the victim is going to be better off, and two, that the defendant isn’t going to reoffend.”
Miami-Dade County Judge Steve Leifman, another panelist, said studies show that most violent offenders suffer trauma early in life, and the criminal justice system is ill-equipped to break the cycle that keeps them reoffending.
Restorative justice can be a powerful way to force defendants to face the consequences of their actions, Judge Leifman said.
“This is harder than prison for some people, to have to face what they have done…by actually having that heart-to-heart understanding, making someone whole,” he said. “That never happens in our criminal justice system.”
Another panelist, retired Wisconsin Supreme Court Justice Janine Geske, directed a Restorative Justice Initiative at Marquette University Law School, where she was a distinguished professor.
As a former trial judge, Justice Geske said she presided over many violent crime cases, and she understands why some prosecutors might be hesitant, at least at first, to embrace the restorative justice concept.
“Twenty years ago, I thought that was nuts, you’re going to ask survivors of crime to sit down with the offender and have a dialogue?”
But she said that was before she saw how well the process served crime victims.
“I was dead wrong,” she said. “I’ve never had a survivor…regret going through that process.”