Alternative dispute resolution examples often highlight relatively cheap, quick, and efficient alternatives to litigation, such as mediation. Within the criminal justice system, cases increasingly are being resolved through a form of alternative dispute resolution called restorative justice. A recent news story has prompted discussion of how restorative justice is defined—and how it can be implemented fairly.
An Arresting Video
In May 25, 2020, a video went viral of a white woman, Amy Cooper, arguing with a Black man, Christian Cooper (no relation), in New York City’s Central Park and then calling the police on him. Christian had asked Amy to follow park rules and leash her dog. She refused, and when Christian offered her dog a treat, called 911. Saying Christian was threatening her and her dog, she asked for the police to come. By the time the police arrived, the two had left. Amy was pilloried on social media for falsely accusing a Black man and potentially endangering him. She was charged with filing a false police report, a criminal misdemeanor.
Christian Cooper chose not to aid the investigation into Amy Cooper, writing in a Washington Post op-ed that Amy had already “lost her job and her reputation” as a result of her behavior. He suggested a fair outcome might be for her to be “found guilty and sentenced to anti-bias training and some form of community service.”
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What Is Restorative Justice?
The final outcome was even less severe: On February 16, 2021, the Manhattan District Attorney’s office dismissed its case against Amy Cooper after she “participated in five therapy sessions that focused in part on how racial identities shape people’s lives,” according to the New York Times.
According to the prosecutor, Joan Illuzzi-Orbon, the goal of the “alternative, restorative justice resolution” was “not just to punish but to educate and promote community healing.” She said that Cooper’s therapist said the sessions were “a moving experience” and that Cooper had “learned a lot.”
Cooper’s lawyer was pleased with the resolution but threatened that “others” who “rushed to the wrong conclusion . . . may yet face legal consequences,” according to the Times.
Some experts say that the legal dispute resolution of Cooper’s case fell well short of restorative justice. “I can say with certainty that the five therapy sessions described in the media are not restorative justice by any definition,” Restorative Justice Initiative founder Mika Dashman told Gothamist. Restorative justice “invites everyone impacted by conflict and/or harm to develop a shared understanding of both the root causes and the effects,” Dashman explained.
The decision to close Amy Cooper’s case without community engagement “reeks of unfairness,” Shailly Agnihotri, a former prosecutor and public defender who now runs the Restorative Justice Center of Newburgh, NY, told Gothamist. So-called diversion programs like the therapy offered to Amy Cooper increase perceptions in communities of color that privileged white offenders are unfairly and disproportionately given light sentences, according to Agnihotri.
A spokesperson for the Manhattan District Attorney subsequently conceded that Amy Cooper’s therapy sessions “may not have been a Restorative Justice session in the traditional sense” but rather qualified as a “restorative resolution, which focused on addressing and confronting racial bias.”
A Quest for Accountability
Confusion about what constitutes restorative justice, distinct from other methods of dispute resolution, arises in part because “restorative justice doesn’t come with a universal blueprint,” writes South Carolina Restorative Justice Initiative executive director and founder Aparna Polavarapu in an NBC News article. Whether the accused, those they have harmed, and community stakeholders are involved varies across dispute resolution examples. “The common thread . . . is the importance of arriving at accountability,” according to Polavarapu.
For Amy Cooper, taking accountability would include acknowledging how her actions had affected Christian Cooper, “contextualizing her actions in light of our nation’s systemic racism, making reparation and taking steps to adjust her mindset and future behavior,” writes Polavarapu. Such accountability seems unlikely to have been met in Cooper’s case, Polavarapu concludes: “It is hard to believe that five therapy sessions would be enough to unpack what is probably a lifetime of social conditioning that culminated in this act.”
Polavarapu agrees that a “nonpunitive approach prioritizing accountability” would probably have been the best method for spurring “actual positive change in [Amy] Cooper.” But the fact that Cooper’s lawyer threatened legal action after her misdemeanor case was resolved casts doubt on whether that positive change has occurred.
Polavarapu concludes: “We should be asking: Why doesn’t this program do enough? How can we make it better? How can we help Cooper hold herself accountable?”
What alternative dispute resolution examples in the news have you learned from?