The criminal justice system has its fair share of critics, including those who believe there are legitimate opportunities to bring a greater degree of fairness to the process of achieving justice. In the eyes of Hon. J. Wesley Saint Clair (Ret.), one such way to achieve this is through restorative justice.
With more than 41 years of experience as an attorney, prosecutor, magistrate, educator, judge and now a JAMS mediator and arbitrator, Judge Saint Clair brings his highly respected reputation and demeanor; his commitment to diversity, equity and inclusion; and his ability to navigate often contentious behaviors to achieve outcomes that benefit all involved.
Please describe your legal career prior to joining JAMS.
Judge Saint Clair: My professional background began after graduating law school in the early ’80s at the University of Washington. I then joined the King County prosecutor's office as a deputy prosecuting attorney for several years, and from there I went into private practice in the Seattle area. Then I became a pro tem judge for a number of years and was eventually appointed to the district court, which was a court of limited jurisdiction, in 1991. I was elevated to the superior court, a court of general jurisdiction, in 2004. And I retired from the bench after more than 30 years in 2019.
We know you have a strong interest in restorative justice. What is restorative Justice?
Judge Saint Clair: Restorative justice is really a model of conflict resolution that goes back thousands of years. Before there were legal systems, when a conflict occurred, the town’s elders would call together the parties that were involved. The community would participate as observers and witnesses, and the parties would make their presentations to those decision-makers. The decision-makers would then help the parties come to a resolution that was fair and just for everyone.
To put that in a modern context, the University of Wisconsin Law School defines restorative justice as “examining the harmful impact of a crime and then determining what can be done to repair that harm while holding the person who caused it accountable for his or her actions. Accountability for the offender means accepting responsibility and acting to repair the harm done. Outcomes seek to both repair the harm and address the reasons for the offense, while reducing the likelihood of re-offense. Rather than focusing on the punishment meted out, restorative justice measures results by how successfully the harm is repaired.”
How did you come to apply restorative justice when you were on the bench?
Judge Saint Clair: In my role as chief judge of the juvenile court, I sat at the intersection of education, child welfare, child protective services, and our civil and criminal legal processing of juveniles. And it became very evident to me that the punishment-focused, retributive model that we employ simply wasn't working very well because there was great recidivism. After hearing about restorative justice, I did my due diligence and became convinced that it was a better model than our current one, which sends children to prison for long periods of time and doesn't give them the tools to avoid becoming trapped in the system.
We came up with some programs that applied restorative justice principles to certain types of cases that we believed would benefit from a different mindset. The idea was, if we engaged with the accused, allowing this person to address some of their traumas and the shortcomings present in their environment, we could then help them improve their skill set. As a result, the likelihood they would return to court diminished.
I remain convinced that a more holistic, more humanistic approach to justice is needed.
Are there any principles of restorative justice that are directly applicable to ADR?
Judge Saint Clair: One of the key practices of restorative justice is to encourage listening at a level that people oftentimes do not fully engage in. Most of the time, we listen to respond. This means as soon as you formulate a response to what you're hearing, you've stopped listening, because you're waiting for the opportunity to jump in and make your point. And the reality is that you've stopped listening to the entirety of the conversation. In restorative justice, the idea is to listen completely, which empowers everyone to feel they are heard. I find this practice extremely useful in ADR. All parties can benefit from listening completely.
An additional principle of restorative justice that applies to ADR is assisting the parties to engage in active negotiation, which can lead to a mutual agreement. Through active discussion and understanding, as a neutral, we have the opportunity to assist the parties with navigating conflict. These tools are essential within restorative justice and are transferable skills within the ADR process.
What can ADR professionals do to make sure historically underrepresented communities are represented within the legal system?
Judge Saint Clair: ADR professionals need to have an awareness that they are subject to the overall conditions that affect our world. Bias, preconceived notions of who is deserving and who is not, of systemic and institutional racism—these are real experiences. And even though we might not share those experiences, that does not invalidate them. ADR professionals can listen and bring empathy and cultural awareness to the process to be more inclusive.
What advice would you give to neutrals and attorneys who would like to contribute to creating a more diverse and inclusive ADR/legal industry?
Judge Saint Clair: It’s important to remember that we all have unconscious bias. We need to remain aware of this and focus on it. Do your own work of self-assessment. Do not let your own life experiences act to invalidate the life experiences of others. Don’t forget that people are able to read nonverbal cues. Be open to more deeply understanding the needs of those who have engaged you. People are different in so many ways, be open to and respectful of those differences.
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