By Judge Joan Shkane
This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.
Please note: Senator Sam Ervin, chair of the Senate Select Committee on Watergate, in the preface to their report pointed out that the law is not self-executing. It must be executed by humans. And therefore, it must not be in the hands of those who are not faithful to it.
MYTH: There is only one kind of dispute resolution in New York State, and that is through lawsuits in the courts. We do not use restorative justice (RJ) in our system.
REALITY: About 25 years ago I met a British lawyer (barrister, Queen’s Counsel, the highest-level British lawyer). He was deeply involved in restorative justice in Britain, in cases between individuals (civil cases) and in criminal cases involving a perpetrator and a victim. He reported that RJ was flourishing in Britain as an alternative to the traditional trial system.
Restorative justice is a program of dispute resolution. It is an alternative to punishment of a crime (criminal case) or to making a strictly monetary award to a victim (civil case). It is a system that is centuries old. In the U.S., about 45 of the 50 states have made the RJ system into law for various types of cases.
The system of court litigation, our usual system, can result in a monetary award in the civil area, and prison in the criminal area. In the restorative justice system, focus is on repairing harm and resolving conflict. It can also add a monetary damage part to a settlement. RJ principles are internationally recognized, like those practiced by the British trained lawyer Mahatma Gandhi through the M.K. Gandhi Institute of Nonviolence. The system has also been used successfully by the South African Truth and Reconciliation Commission, and the Rwandan genocide conferences, among others. It is especially useful in New York State in domestic violence cases and juvenile cases. It has been used in prisons, in social work, in the Northern Ireland conflict, and in work with indigenous groups in the U.S. and Canada, and the Maori people of New Zealand. The Monroe County (New York State) Bar Association has been discussing use of the system and training its members in restorative justice. The training focus is on allowing people to express themselves rather than focus on litigation. In some cases, the criminal meets directly with the victim, each party discusses how (s)he feels, and all agree to a restitution plan based on the actual cost of injuries. Community service, expression of TRUE remorse, and education to prevent repeat criminality can be required.
At the start of the RJ proceeding certain questions can be posed and answered such as what are the needs of the injured party, who caused the injury, what is the obligation of the person causing the injury, what would be the proper procedure to put things right, why did the criminal commit the crime and how has it affected everyone’s lives. This is different from the criminal justice system where the questions to be answered are what laws were broken, who did it, and what do they deserve as punishment.
In the current system of litigation, conversations among parties are very regulated by their attorneys to make sure that the parties do not say anything that could be used against them. In RJ it is a sharing of thoughts rather than making arguments.
In the RJ process, a trained facilitator will meet with each party at a neutral location and discuss whether or not a reasonable outcome is possible. The facilitator will ensure that each party is acting in good faith and not just mouthing the words, but also walking the walk. If the RJ process is successful, then the parties make a confidential agreement to insure freedom of expression. Understanding thoughts and feelings is the goal, even when the parties disagree with the other’s positions.
RJ can cut down on the amount of time a case continues, sometimes by more than 50 percent. It can reduce the chances of offending again. It provides satisfaction and restoration. It is especially effective for juveniles. The satisfaction is much greater than an exchange of money alone. People find satisfaction from expressing their frustration or anger. It can bring about closure, and satisfy a need to confront the one who has caused harm. It also provides justice for the community.
In New York State the three core ideas of RJ that are used are: 1) Repair harm; 2) Encounter between the parties to decide the nature of repair together; and 3) Transformation – causing changes in people, relationships and communities. RJ is often used in New York State schools. RJ can be substantially less expensive than court litigation.
Those who do not believe in the effectiveness of the RJ process argue: 1) RJ erodes legal rights; 2) RJ trivializes crime, especially domestic violence against men, women and children; 3) RJ cannot make real change; 4) RJ leads to vigilantism where private individuals take justice into their own hands and do not leave it to the professionals; 5) RJ cannot fix structural societal inequalities, like poverty, and other issues growing from discrimination; and 6) RJ needs vastly more studies to correctly measure how it is working.
MYTH: Playing fantasy sports is legal in New York State.
REALITY: In the world of fantasy sports, a person selects a real-life sports team and athletes and competes based on how well their chosen team performs. A case before New York State’s highest court, the Court of Appeals, surrounding the legality of fantasy sports, has been argued once and then ordered for re-argument. This suggests that the six justices cannot agree and may be deadlocked over whether fantasy sports breach an anti-gambling section of the NYS constitution, and therefore are illegal. In 2016, a new law outlined what safeguards must be in place in order to make the fantasy sports business legal in New York State. The new law set up registration and taxation of fantasy sports. The pending lawsuit should determine the legality of the fantasy sports laws.
The deadlock among the justices may be broken when the number of justices is increased from 6 to 7, making an odd number of justices who cannot then deadlock. Much in this area of law depends on who the Governor chooses to make up the full complement of the Court of Appeals (7 justices). Then we may have an opinion on the legality of the fantasy sports business, although the justices will likely still be divided, but not deadlocked.
Attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.