When officials in rural Genesee County, New York, decided 35 years ago it was time to replace their old jail, they wanted to build something not just better but bigger. Doug Call, an assistant county attorney, thought that was a mistake. Though he lacked a law enforcement background, Call had seen enough of traditional punitive criminal justice—as an Air Force JAG officer and during the nearby Attica prison uprising nine years earlier—to put his faith in sentencing alternatives.
His arguments went nowhere with county leaders, so Call took matters into his own hands. He announced a campaign for sheriff on a no-new-jail platform against the law-and-order incumbent. The lifelong Republican was no revolutionary. But he was pushing ideas that wouldn’t go down easily in a deeply conservative working-class region dotted with dairy farms, small towns, and a disproportionate share of New York’s state prisons. Even so, Call won the election.
To turn his vague agenda into action, Call hired as his point man Dennis Wittman, a 36-year-old probation officer and former seminary student who moonlighted as the local newspaper’s stock-car racing columnist. What they lacked in credentials Call and Wittman made up for with auspicious timing. A fringe philosophy that sought to marry alternatives to incarceration and intensive forms of victim services had just begun in a few American and Canadian outposts. For this approach to stand a chance as a true alternative to this country’s punitive ways—America’s prison-building binge was also about to begin—it needed test sites willing to build it into their official criminal justice system.
Call and Wittman decided to make their county one of the first such tests for this philosophy, which would come to be called restorative justice. This pair of self-taught iconoclasts in Batavia, New York—in the words of one prominent local, “not a liberal place, not a place of innovation or excitement; a pretty plain, old place”—launched Genesee Justice, a radical experiment in the systemic application of restorative justice.
Call would last only seven years in his position, but Wittman soldiered on for a quarter-century, attracting renown in restorative-friendly pockets of the criminal-justice field while remaining all but unknown in his own town.
The restorative justice movement nationwide, meanwhile, fell far short of what its supporters had hoped for. In theory at least, it offers a clear alternative to the policies driving mass incarceration. Its promised solutions come at a low cost, in financial and human terms. And it has a track record for treating victims and offenders alike with a compassion that allows people to move on constructively and productively.
Yet it’s barely mentioned in today’s criminal justice reform debate and has never accomplished much more than to chip small chinks out of the granite edifice of the American prison and jail system. The story of Genesee Justice explains why restorative justice has had such a hard time catching on—and sheds light on whether it ever will.
* * *
From the start, Genesee Justice’s founders paired idealism with political savvy. To make jail alternatives official policy, Call and Wittman realized they had to win the allegiance of key players—judges, legislators, and law enforcement—or at least convince them to remain neutral. With Call as the new sheriff and the county’s sole felony-level judge, Glenn Morton, on board as an enthusiastic supporter, they had a head start. But neither one would make it past his next election if keeping people out of jail proved a flash point with voters.
The 40-year-old Call had to win hearts and minds among his deputies, who looked upon their new boss’ ideas with skepticism. Greater threats lurked among the town justices of the peace, who controlled the disposition of all but the most serious crimes; county legislators, who controlled the sheriff’s budget; and the district attorney.
Call and Wittman conducted a barnstorming tour of the town justice courts. In New York, justices of the peace often are non-lawyers working part time. They weren’t known for their legal innovation, especially in those days. “It was a tough sell,” says Gary Maha, at that time one of Call’s deputies and his eventual replacement as sheriff. “They were used to ‘jail ’em or bail ’em.’ ”
The sales pitch to the judges, other county officials, and the public: It’s not soft on crime to keep low-level offenders out of jail as long as they are held accountable in other, meaningful ways. The first Genesee Justice program aimed to do just that, by setting up a strict system of monitoring offenders post-conviction while they performed community service work in lieu of jail.
Then came the fiscal rationale. The community service program could immediately decrease the jail population. Call and Wittman also wrangled a grant from a private foundation to pay for Genesee Justice’s first three years of operation, so it wouldn’t cost the county a dime. One by one, judges started to get on board.
Community-service sentencing is considered restorative because the perpetrator repairs the harm caused by the crime by helping his community and involving community members in his punishment. Offenders who otherwise would be held accountable only to jailers and probation officers now had to show up for unpaid work at any of dozens of community organizations or public agencies, repairing fireplaces in a park, cleaning out pens at an animal shelter, or reading books onto tape for an agency serving the blind. But to be truly restorative, Genesee Justice had to widen its focus to include not just perpetrators but also those who had been harmed by crime.
Until 1982, Genesee County, like most jurisdictions around the country at that time, lacked any dedicated agency or services for crime victims. Over the next decade, as the victims’ rights movement gained steam, even small towns like Batavia would start a victim-witness program, usually an arm of the prosecutor’s office, using federal and state money to provide at least the basic services: helping victims to navigate a confusing maze of police and courthouse appointments, to seek restitution and other financial assistance, and to petition for court orders to be protected from further harm. To Wittman, that was just the starting point.
* * *
Since the mid-1970s, the term “victim-offender reconciliation” had been bubbling up in scholarly and counseling circles. By the mid-’80s, restorative justice became the favored label. Despite an endless series of permutations and holy wars between purists and pragmatists since those early days, the practice’s core approach has not varied.
A truly restorative approach starts by asking who was harmed and what that victim needs to be restored or healed. Emphasizing dialogue over adversarial procedures, and treating crime as a violation of personal and community relationships and not just an offense against the state, restorative practices don’t necessarily rule out punishment. They just don’t start and end the discussion there.
Restorative justice advocates’ talk of healing and peacemaking put the practice perpetually at odds with the dominant strain of victim advocacy, which sprang from fears and resentments over soaring crime rates and lenient laws and judges. Even when mainstream victim advocates recognize the potential value of restorative practices, they have noted its inherent limitations. Because it works best in cases where a crime is reported and solved, the majority of victims are excluded right off the bat. Next, it asks victims to behave toward offenders in a way that doesn’t sound intuitive, and usually isn’t a victim’s preference, at least not at the outset of the process. Some victims won’t accept restorative justice, says Will Marling, executive director of the National Organization for Victim Assistance, “because they don’t want to have any contact with that individual. They don’t want any mechanisms that remind them of what this individual has done to them. They want complete and utter separation.”
The greatest challenge for restorative advocates, then, is to convince victims that letting go of anger, revulsion, and revenge heals in the long run.
Howard Zehr, the movement’s leading thinker, says tough-on-crime policies have always paid lip service to helping victims while focusing almost exclusively on what to do to the offender. “One of the reasons the whole restorative justice field started,” Zehr says, “is we felt like victims are not just being neglected, they were being re-traumatized by this process. And we were trying to figure out how can we engage them more, give them more options, more information, meet their needs in a better way.”
Adding options can mean taking restitution more seriously, involving victims in setting conditions for offenders’ release, and establishing dialogue between victim and offender. Advocates bristle when such dialogue, which is central to the restorative approach, gets painted as naive and touchy-feely. They see true accountability in the often-wrenching meetings when an offender faces his victims to apologize, to tell the whole truth about why he wronged them, to hear their stories of loss, and to work out a plan to make amends and avoid harming others. “As long as consequences are decided for offenders” rather than involving them directly in repairing the damage they did, Zehr writes, “accountability will not involve responsibility.”
The practice gained a reputation early on for its effectiveness in resolving disputes involving youthful vandalism and other lesser crimes. The question was whether it would work for more serious, adult crimes.
* * *
From Genesee Justice’s earliest days, Wittman and his staff staked a claim at the frontier of restorative justice by using victim-offender dialogue in cases of rape, robbery, negligent homicide, and vehicular manslaughter. In five of the first eight such cases between 1983 and 1985, the meetings were conducted even before a judge sentenced the offender, giving Genesee Justice counselors a chance to amplify victims’ voices in determining the outcome of cases. Sometimes that won offenders a reprieve from jail or prison. Other times, the outcome was simply a more satisfied victim.
Then, in 1985, Wittman added a twist all his own. A young man faced up to 15 years in prison for drunkenly pointing a rifle out a window of his home and shooting and wounding two men who happened to be walking by. The victims had widespread community support in calling for a stiff sentence. Wittman met dozens of times with the victims, their families, and the offender to cool the emotions. But that didn’t address public anger. So Wittman convened a community meeting with the victims and the shooter, where community members of his choosing—including a cop, a teacher, and a business owner—saw the reconciliation taking place between the parties, reaching a consensus that blamed the shooter’s drug and alcohol problems for the crime. Wittman reported the results of the process to the judge, who ended up giving the shooter a six-month jail term, along with counseling and community service.
The tactic was the first documented case in the country of what came to be called a sentencing circle, says restorative-justice pioneer Mark Umbreit, who traveled from Indiana to assist Wittman in the case. Wittman called it “community conciliation” and went on from there to use it in a handful of other felony cases. Umbreit remains in awe of the chances Wittman was willing to take. “Dennis,” he says, “was ahead of his time.”
While advocates are quick to acknowledge that dialogue only works with certain victims and offenders, substantial research backs their claims that it helps heal victims of violence, as well as the families of homicide victims. No matter how counterintuitive it may seem, victims say that it satisfies their craving for answers about why a crime occurred and to hear an offender’s apology and commitment to perform acts of atonement. While often motivated by faith and a belief in redemption and forgiveness—indeed, those beliefs were at the core of Call and Wittman’s motivations—restorative practice forbids pressuring victims to forgive. Advocates simply want dialogue, and whatever else may flow from it, to be offered as an option.
In each of the more than 100 cases in which Wittman used victim-offender dialogue to help victims, he and his staff documented elaborate preparation. They held dozens, sometimes hundreds of meetings with victims in each case. They led intricate negotiations with defense lawyers, prosecutors, and judges when the dialogue occurred before trial. The pretrial element was key, Wittman believed, because victims need the help as soon as possible, not at sentencing or afterward.
Beginning in the mid-1980s, Wittman’s revolutionary approach drew researchers and would-be protégés from around the nation to Batavia to study his work. Wittman got invited to speak on his work in 40 states, plus to the Canadian government and in Japan.
Through the 1980s and ’90s, Wittman kept the grant spigot flowing to pay for a growing suite of programs. These included a daring experiment called “judicial diversion” in which defendants could earn lesser charges by complying with a long list of conditions to prove they were worthy of a second chance. He started a child advocacy center, one of the first of its kind, to aid young victims of sexual abuse. And, at the DA’s urging, he designed a conditional-discharge program for those charged with DWI, in which first-time offenders could earn their way to dismissal of their charges by getting treatment and performing community service under strict conditions.
County officials gave Wittman room to run because what he was doing worked. The county enjoyed huge savings from a smaller jail population without seeing a spike in crime. Victims got far more care from Genesee Justice than from ordinary victim-aid agencies. The judges and defense lawyers were happy, while police and prosecutors were at least accepting of the tactics.
The comity wasn’t just a product of luck. Ever a master at office politics, Wittman devised a mechanism for coordinating criminal-justice policy in Genesee County: a monthly meeting of all the key players inside and outside government, even social services and treatment providers. Wittman himself chaired what he called the Criminal Justice Advisory Council, which was one part inter-agency communication device and one part restorative-justice camp for the officials on whose cooperation the whole program depended.
CJAC served another strategic purpose as well. It cemented the notion that despite its outside funding sources, Genesee Justice was integrated with the official justice system of the county. Restorative justice, in other words, wasn’t just tolerated by authorities. It was official policy.
* * *
Where restorative justice fits within the criminal-justice system has always been a point of contention in this country. As it won mainstream acceptance in other parts of the world starting in the 1980s—in the U.K, other parts of Western Europe, Canada, New Zealand, and Australia—its growth in the U.S. proved more fitful. Although restorative programs exist in nearly every state and the roster of laws allowing for them is extensive, nowhere has the ultimate goal of wholesale shifts to restorative practices been attempted, much less realized.
Juvenile and school programs aside, most of the efforts in this country are, as New Mexico State University researcher Dana Greene put it in this 2013 paper, so small-bore and marginal that “little, if anything, is truly being replaced.” Zehr, the movement’s inspirational leader, reluctantly agrees. “It’s rather discouraging right now,” he says. “The obstacles really are huge.” Among them, in his view: lack of a central organization of practitioners and advocates to coalesce around a clear strategy, and opposition from a firmly entrenched punitive culture and “prison-industrial complex.”
A big factor in the restorative movement’s favor, argues Michael Gilbert, executive director of the National Association of Community and Restorative Justice, is the growing bipartisan realization that traditional criminal justice—with its unsustainable prison costs and high recidivism rates—is a failed system. Restorative true believers find it unimaginable that policymakers can stubbornly resist the appeal of their alternative methods forever.
One sign that this isn’t just wishful thinking can be seen in the endorsement of restorative justice by political and evangelical conservatives, and even by police, who are eager to rebut restorative’s “hug-a-thug” image. Fred Fletcher, police chief of Chattanooga, Tennessee, first learned about restorative justice from activists in Austin, Texas, where Fletcher was a police commander working with community groups to shut down open-air drug markets. Restorative problem-solving involves community members at every step—the antidote, Fletcher says, to “saturation-type policing” that only alienates the law-abiding majority. Fletcher, who has begun sending social workers to crime scenes to give victims on-the-spot help, hopes to find the same sort of community support in Chattanooga to address street violence. “You give me enough discretionary resources, and I can arrest people all day long, all week long, all month long,” he says. “I can fill up the jails. And we've been doing that for a few generations of police work. If that was the solution to these problems, we wouldn't have these problems."
Zehr applauds those sorts of local initiatives, and has seen many of them take root. Still, he cautions that by seeking the embrace of law enforcement and court officials, restorative advocates risk a fate perhaps worse than obscurity. “I always say there are three stages to social intervention,” Zehr says. “The first one is they ignore you. The second is they oppose you. And the third is they co-opt you. And we’re in the combination of two and three. I mean there’s an awful lot of co-optation going on where people are claiming to do restorative justice or they try some half-baked idea that they call restorative justice and then they claim it doesn’t work.”
* * *
Genesee Justice started out as purely Call and Wittman’s vision, put into action through Wittman’s will power and his alliances with key players. Then, one by one, those allies exited the stage. By 1997, the sheriff, county court judge, public defender, and district attorney positions had all turned over. Some of the new office-holders looked upon Genesee Justice, and the creative ways Wittman went about funding it, with more skepticism. Some even questioned putting victim services and offender counseling in one agency—the essence of restorative justice.
By Wittman’s count, during his 25-year tenure he’d saved the county about $6 million on jail stays it would have had to pay for if not for programs like community-service sentencing and the pretrial release-under-supervision program. But the additional work Wittman had absorbed put strains on the staff—including Wittman himself. After years of obsessively long work hours, his health was failing. Thanks to a heart attack, liver disease (he’s not a drinker), and other serious problems, he was working a reduced schedule and taking sick leaves until, in 2005, he decided to retire at age 62. Following him out the door after a stint as acting director was his next in command.
Into the breach stepped Ed Minardo, a counselor from the state prison system trained in restorative justice methods. Though a great admirer of Genesee Justice’s mission and Wittman’s accomplishments, Minardo quickly grasped the challenges. The most daring restorative work in victim-offender dialogue and judicial diversion cases had declined in volume. The staff, while talented and hard working, showed pockets of doubt about the core mission of serving both victims and offenders. Minardo had to get a handle on Genesee Justice’s half-dozen disparate programs, while also diving into hands-on casework himself.
But all of those management challenges paled in comparison to an increasingly dire financial squeeze. Grants and state funding were shrinking. The rickety infrastructure supporting Wittman’s creation was coming apart at the seams.
Minardo’s frustration shows years later. “Dennis always had the can-do mentality, ‘We can do it, we can find a way to kind of make it happen, make it work,’ ” Minardo says. “For those of us mortals that have to take over from somebody that is a visionary like that and are looking at the dollars and cents …” He doesn’t finish the sentence, but he doesn’t have to. The math didn’t work, and it grew increasingly out of balance throughout Minardo’s five years at the agency. The only alternatives were to voluntarily slash services or ask the county to fill a growing gap between expenses and revenue. He chose the latter.
It worked, but only for a short while. Midway between western New York’s twin centers of industrial decline, Buffalo and Rochester, Genesee County felt the squeeze especially hard beginning three years into Minardo’s tenure when the national economy crashed and tax revenues shriveled. The county manager and legislators no longer could cover the tab. In late 2010, the manager called for abolishing Genesee Justice. The DA’s office would handle victim services—presumably the state-mandated basics only—while supervision of offenders would fall to the probation department. It was a plan to revert to traditional criminal justice.
The proposal sparked a revolt. One group turned a local pizza joint into a hub for organizing save-Genesee-Justice fund-raisers. Hundreds packed a courtroom for a budget hearing, where victims praised the agency for the extra help they’d received and community organizations pleaded for a reprieve. Letters of support poured in to county offices. Perhaps more meaningful in the eyes of legislators, the county’s entire criminal-justice system—judges, DA, sheriff, public defender, police chiefs, social-services agencies, and the local bar association—arrayed itself against the plan. Even after the loss of key allies over the years, the committee Dennis Wittman had set up to wed county justice officials to his restorative vision had come through.
Wittman skipped the climactic hearing—he was hospitalized to receive a kidney transplant—but his name was invoked over and over in an effort to pull the agency back from the brink. A budget gap of more than $200,000 got whittled down to $120,000, thanks to cuts in staff and money shifting to Genesee Justice from the budget of the previously balky DA. Still the budgeters wouldn’t pick up the balance.
That’s when Minardo decided to sacrifice himself. He asked that his position be abolished, saving the county about $100,000 in salary and benefits. Genesee Justice would be run by the assistant director. Minardo’s gambit worked. The manager took his proposal off the table.
Since then, a debate over the agency’s existence has not come up again, at least not publicly. The battle made locals more aware of Genesee Justice, says Jane Schmieder, a local lawyer who tried to mount a private fund-raising campaign as a backstop to the county’s support. “A lot of people, myself included, really didn’t appreciate or realize the range of services that was provided by Genesee Justice,” she says. What little national press attention Genesee Justice had received for its work was back in the 1980s. Since then, the agency had just done its job, leaving the community largely unaware of what Wittman and his successors were really up to.
* * *
Genesee Justice these days is housed in a brick building on Batavia’s Main Street that once served as the sheriff’s residence. Dark wood trim and a grand staircase remain of what at one time must have been a stately home. Now, it’s a cluttered and bustling warren of bedrooms-turned-offices. In rooms where victims and offenders meet with case workers, the sounds of inmates and the scent of their meals sometimes seep through the wall that connects the office to the adjoining jail.
Shannon Ford leads a brief tour, introducing me to staff peeking out from behind stacks of case files. Ford took over as Genesee Justice director in late 2012, after the assistant director who had replaced Ed Minardo quit for a more stable job in Buffalo. Ford came schooled in restorative practices. At the alcohol and substance abuse center where she previously worked, her boss there found comfort through Wittman’s brand of restorative justice in a meeting with the driver who caused a car accident that killed two of his children.
I ask Ford if she has the staff she needs to fulfill her mission. “We’re—we’re managing,” she says gamely if hesitantly. “We’re continuing with all of our services. Nothing has been eliminated. We struggle every day with the resources that are available, but we’re maintaining and we’re providing our services.”
On paper, the list of programs remains unchanged. But Ford admits that the most exceptional parts of the Wittman legacy—victim-offender dialogue, community sentencing conferences, judicial diversion—all lie essentially dormant. So is it still a restorative-justice agency? “I think it’s more of a general philosophy of our agency,” she replies. “None of our programs, in and of themselves, are an actual restorative process, just looking at them, when you read through the descriptions. We have the ability to do community conferencing and that sort thing. But that’s something that hasn’t really taken off in our community.”
She might be selling the restorative elements short. Victim services remain elaborate by small-county standards. Offender programs revolve around jail alternatives and accountability through strict monitoring and conditions of release. The unusually extensive community-service program involves large swaths of the community helping to put offenders on the right path without banishing them to jail. But it’s clear that the agency struggles to cover the essentials, much less the more experimental work.
Minardo, who praises Ford’s efforts, nonetheless renders a harsh verdict about what the budget cuts have done. “Genesee Justice is still in existence, but it’s significantly hindered if not crippled in terms of its capability of providing the robust services that we once were on course to be able to be providing,” he says. A “stripped-down” Genesee Justice is better than the plan to divvy up its remains among other agencies, Minardo says. But there’s no mistaking his belief that the agency’s glory days are behind it.
That’s to be expected, says restorative-justice guru Howard Zehr. “So many of these programs or ideas are based on charismatic people,” he says. “Dennis Wittman was this charismatic character who had political clout, had social networking, and had a real vision for this. Without Dennis there, it got into problems. And that’s happened way too often. How do you institutionalize something without losing the vision?”
And yet there is no doubt that the officials who stood up for Genesee Justice when its continued existence was on the line still believe in it, still take pride in its novelty, and still care that it allows them to administer a better quality of justice suited to their community.
DA Larry Friedman, once a skeptic, says the pretrial release and DWI programs give him a middle ground between harsh and lenient—accountability without jail—that he needs in certain cases. “Yeah, it’s a little different,” Friedman says. “But it works.”
Sheriff Maha, who has overseen Genesee Justice’s directors from Wittman through Ford, doesn’t come off as a soft-on-crime guy. “He’s as Clint Eastwood as you get,” says one former Wittman staffer. Still, Maha the career Republican lawman sounds like he’s playing against type when he talks about using jail as a last resort. “Low-level offenders? We don't lock those people up,” Maha says. “We’ll get ’em into some program or under supervision or something. But, you know, a shoplifter? We don’t lock a shoplifter up. Even a DWI you don’t lock up. Disorderly conduct, or harassment? You don’t want to fill up your jail with those people.”
One way of looking at how the current version of Genesee Justice works, albeit statistically crude, is to compare the county’s incarceration rate to a national average. Based on the latest Bureau of Justice Statistics data, the national average incarceration rate for local jails would put a county of Genesee’s population, 60,000, at 140 prisoners. That’s well above Genesee’s actual average in the past five years of fewer than 100 prisoners. The comparison is even more favorable considering that the Genesee head count is padded with federal prisoners and others not considered local jail prisoners by BJS.
As for the more cutting-edge programs for victims, the sheriff says Genesee Justice might offer them if victims asked. But they typically don’t. “We don’t force it upon them,” Maha says. “If they want to sit down with the offender, it’s entirely up to them.”
* * *
The years since his heart attack and subsequent retirement from Genesee Justice have not been kind to Dennis Wittman’s body. The man who was once a force of nature now shuffles slowly, his voice feeble. At 72, he has had liver and kidney transplants, strokes, skin cancer. The first several minutes of our conversation revolve around multiple health crises in which he wasn’t expected to survive. He blames, indirectly, his devotion to Genesee Justice. “I was working seven days a week, 24/7,” Wittman says. “And I was doing that for 25 years. I think I just drained myself dry.”
These days, he maintains his precarious health by walking several miles daily with his Husky, Codah. To occupy his mind, and record his version of Genesee Justice’s story, he says he hopes to finish a book on the subject “if I live long enough.” His partner in the launch of Genesee Justice, Doug Call, died at age 73 two years ago after devoting the remainder of his 45-year public-service career to a town judgeship.
Wittman acknowledges his pride in his creation. “The real thing that I’m proudest of: This community accepted what we were doing,” he says. “They knew it was the right thing to do.” Traditional justice excludes the kind of direct involvement by the community and victims that Genesee Justice fostered. In that model, Wittman says, “Justice people do all the justice. Here we brought them into it.”
Wittman treads lightly when asked to assess what has become of Genesee Justice since he left. He’s tried hard not to meddle, he says, which means he doesn’t keep close tabs on its work. Sounding more hurt than angry, he says that in the 10 years since he retired, no one from the county has asked him for his opinion about anything. But he knows that the agency exists mainly in maintenance mode, no longer innovating. Devised to remake the county’s criminal justice system, Genesee Justice has largely been swallowed by it instead.
During this fall’s budget debate, Genesee Justice’s top priorities have been to fill a long-vacant child-victim advocate position and create a new case manager slot in its overly busy pretrial release program. These days that will have to count as the highest achievement the agency might reach for.
In the meantime, the county is again debating whether to replace the old jail, although this time the motivation is strictly to modernize, not to expand. I mention the talk of the new jail to Wittman. “Thirty-five years later, we still haven’t built a jail,” he says. “That’s tremendous.”