Restorative justice has long been seen as an alternative to suspension or arrest for young people who commit minor offenses. If they accept responsibility, speak face-to-face with those they harm, and repair the damage they caused, young people can avoid punishments that can have steep consequences.
But a new scientific study based in San Francisco, reveals findings researchers have not tested as often: how the method works for youth who’ve committed serious, felony crimes.
The answer is quite well, say researchers with the California Policy Lab at University of California, Berkeley and UCLA.
The subject of study was San Francisco’s Make it Right program, which offers teens facing first-time felony charges for burglary, assault and vehicle theft a choice. (Offenses like homicide are not eligible for the program.) If they complete a restorative justice program run by a community-based organization, they can close their cases with no additional penalties and avoid a criminal record. If the youth fails to complete the program within six months, they’re sent back to court to face a judge.
The UC Berkeley researchers studied young people ages 13 through 17 who completed the Make it Right program over six years and compared them with a similar cohort who faced standard criminal prosecution in juvenile court. The contrast was stark. Roughly 25% of youth who went through the diversion program were arrested again within six months. Forty-three percent of those who went through the traditional course of the justice system had a subsequent arrest, about 20 percentage points higher. The reduced recidivism rates were evident even after four years of study.
“It’s setting a track record for reform,” said Patricia Lee, a deputy public defender who directs the juvenile unit at the San Francisco Office of the Public Defender. “It’s not the institutional response of just locking them up. Through this process, you empower them to have a response to correct the behavior.”
Former San Francisco District Attorney George Gascón, now DA in Los Angeles County, launched the Make it Right program in 2013. In 2020, the program was expanded under the current DA, Chesa Boudin, to include young adults through age 24.
Over the past decade, restorative justice has grown nationwide within school districts and local courts. A 2019 Utah Law Review study found that 45 states have laws supporting the use of restorative justice in many different settings; 35 states “have codified the use of restorative justice in juvenile justice and criminal justice processes.”
Yet unlike in San Francisco, most restorative justice programs remain an option only for low-level offenders.
Alissa Skog, one of three authors of the Make it Right evaluation, said rigorous evidence about a diversion program for youth facing felony charges is particularly needed now — with efforts to reduce mass incarceration gaining traction nationwide. Skog and her colleagues’ working paper is available through the National Bureau of Economic Research.
“We’re in this world where policymakers want to reform the criminal justice system,” Skog said. “This shows evidence that there’s an alternative approach that can be taken to actually improve public safety.”
In an interview with The Imprint, Skog, a senior research associate at the UC Berkeley policy lab, discussed why the gold standard of research evaluation is so infrequently used in criminal justice, what is known about restorative justice for young people, and why the approach to public safety isn’t always an easy path for juvenile offenders.
This interview has been edited for length and clarity.
How rare is it to see this type of study about a juvenile diversion program and what do the findings mean to the field?
I do think it is fairly rare. It’s probably no surprise when you want to think about restorative justice, that the United States is probably not the first country that comes to mind. Places like New Zealand have done a lot of work on this, but there’s a lot less evidence about how this works in the juvenile system in the United States.
The literature’s fairly mixed on the effect of restorative justice in the juvenile system. There have been some studies that have shown no effect, where you couldn’t really tell if there’s a difference for those who are offered the program compared with those that weren’t. There’s been some that have actually shown an increase in recidivism for the juvenile population. What makes our study different is that we’re looking at restorative justice compared to traditional prosecution; some of the other research looks at a juvenile restorative justice program versus another diversion program.
How do you hope this might change current practice?
There’s so much of a hunger in the reform space about what can be done. We know we want to move away from incarceration, and we want to move away from all these other heavy-handed punishments. But there’s not always a lot of evidence to what’s actually working or what would work as an alternative. A lot of the work we do is kind of retrospective like, how did this policy affect X, Y and Z? And, to be frank, it’s sometimes a depressing question. How did X policy affect racial and ethnic disparities? How did it affect the jail population?
If you want to try something such as a restorative justice program for juveniles that are charged with fairly serious crimes, and you’re in a place like Wisconsin or wherever, people might ask, do we really want to do that? That seems risky for political reasons. But having something with a rigorous evaluation showing a positive impact, it makes it easier for policymakers to make the case for these programs.
Randomized controlled trials are considered the most rigorous form of evaluation, but that also involves withholding treatment from one group to compare its effect on the other. How did researchers tackle the ethical considerations of having some youth receive an apparently successful intervention?
A randomized controlled trial is the gold standard if you want to estimate causal effects. It’s what is used in medical trials, but you don’t often see it in criminal justice for obvious ethical reasons. You don’t want to withhold something from someone just to test it out if the other group is going to get a benefit. This is a unique situation, because there were real capacity constraints around how many youth the community providers could serve, and so that allows you to kind of ethically randomize the experiment.
The restorative justice process, the conferencing and the follow-up — it’s intensive. So you want to make sure that the caseload for providers is manageable, that they’re doing this right. And at the time that the program started, based on the kind of eligibility criteria and the incoming caseload that the juvenile prosecutor had, we could do a straight 50/50 split: so 50% go to the treatment so they are offered through the Make it Right program and 50% are prosecuted traditionally. And so because there were not enough slots in the program, that makes it ethical. And in a sense, you can make the argument that in some ways, that is the most ethical because you’re not then having someone decide who gets the program, if they’re between two people, you kind of leave it up to chance.
More than half of the youth eligible for the Make it Right completed the program and did not face prosecution, a lower dropout rate than other programs. In the paper, you and your co-authors speculate that this may be a result of the consequences of facing felony charges.
We do hypothesize that facing felony prosecution could be a reason why we see these high rates. The overall enrollment rate is high but it’s important to note that it shoots up even higher once they go through the restorative conference part — of those, 95% go to complete the program.
Other restorative justice programs that we studied had lower rates of participation. In many of these cases, youth are facing misdemeanor charges or an infraction. If they don’t complete the program, if they don’t go through the restorative justice program, they might go to a different diversion program that might be lower-intensity. If you’re a rational person, or you have a public defender, or you kind of think about this on its face, you probably would not pick the restorative option if you have a misdemeanor charge.
With a program like this, is there a risk that some prosecutors could overcharge cases to make sure a young person participates in the program?
I think that’s always a concern: Are these programs net-wideners? One important thing to note about our approach is that randomization happened after the prosecutor decided they would charge this person and what they would charge them with. I think the concern here is that sometimes these decisions happen before there’s a determination of whether a charge is going to be made. Because the randomization happened at this point in the process, we didn’t worry that it might force young people into a part of the justice system where they otherwise wouldn’t have been.
Since the start of the Make it Right program in 2013, the San Francisco District Attorney’s Office has recently expanded the program to include young adults, ages 18 to 24. Do you think the impressive results can easily translate to an older population, or are there other considerations for the design of a diversion program?
I think this is the exact thing that we need to be doing. After a rigorous study that shows it’s working well for a certain group, we should think about expanding and evaluating it. There’s a lot of research that shows the brain chemistry for 18- to 25-year-olds is very similar to juveniles.
However, it’s a very different justice system once you turn 18. Felony prosecution for these offenses in the adult system is going to stay with you in the sense that it’s not going to be sealed if you’re a juvenile — your record won’t just go away if you participate. Another thing is you’re not required to have a parent or guardian if you’re over 18. They’re coming with you and participating with you in these meetings. It’s holding you accountable and it’s often a requirement. It seems like an important piece, not just for juveniles, but for everyone to have someone that’s from their family or from their support system to make sure they follow through. I don’t know what that piece looks like in the adult system and whether it can be mandated.
Over the past few years, a growing number of progressive prosecutors have sought less-punitive approaches to public safety. But now, as many parts of the country are facing an uptick in violent crimes, some justice reforms are being questioned. What would you say to those who are concerned that this type of program is too risky for the public?
For one, the decrease in arrests is substantial, and I think that that kind of speaks for itself. Second, I don’t think restorative justice conferencing is letting someone off the hook. This is a fairly intensive process that they’re involved in for six months, including preparation to confront the victim. One of the scariest things as a kid was being told you had disappointed someone or having to confront someone that you harmed. It’s not an easy thing. You have to go in front of them, you have to take accountability. And then there’s a six-month plan of things that you need to do whether it’s restitution — maybe you can’t pay for the whole computer you stole but you could somehow work to get a quarter of that. There’s therapy that’s required. This is not an easy out.
The other thing is that in the traditional prosecution, the victim usually doesn’t always get to kind of confront the person that harmed them. I don’t know the numbers for juveniles, but in the adult system, something like 97% of cases are settled via a plea deal. You can argue what you think of that as a benefit, but there’s not really much that the victim gets back from the system. So in a case like this, the person who’s harmed actually gets to go and they can express how the incident affected them.