On a February morning, in a courtroom armored with Plexiglas shields meant to stem the spread of virus, Philadelphia prosecutors offered updates on hundreds of cases that lawyers said challenge basic ideas about how justice is served.
On the one hand, the victims — small business owners and big corporate chains alike — had sustained millions of dollars in damage during last year’s uprisings against police brutality. On the other, the accused perpetrators were so impoverished virtually all qualified for public defenders, meaning they’d likely never be able to pay restitution.
So, the district attorney’s charging unit supervisor, Lyandra Retacco, was sorting cases into two piles: She requested preliminary hearing dates for prosecution on charges like blowing up ATMs or committing the sort of premeditated burglary that involves renting a U-Haul. For about 80% of the cases, she said, the DA would be offering a program called Civil Unrest Restorative Response, which lawyers on both sides hope will make the community whole — while avoiding prosecution for more than 500 people, a majority of whom had no prior arrests.
The initiative, which has been gestating for nine months, did not come into the world easily. It will be Philadelphia’s first attempt at a restorative model for adult offenders, and it’s an extraordinarily complex rookie effort. More than 900 businesses were damaged or burglarized in the unrest in May and June, by the city’s count; about 250 suffered similar losses in October after the police shooting of Walter Wallace Jr. in West Philadelphia.
Retacco said those being considered for the restorative response were accused of conduct like fleeing Rite Aid with “a lot of makeup,” being inside a closed GameStop, running a “human assembly line” passing merchandise out of a Walgreens, and being caught in a closed Snipes sneaker store with more than 100 other people, many of whom escaped. The damage recounted in court was dizzying: seven Foot Lockers that were cleared out and lost millions of dollars, $800,000 in losses from the clothing retailer Live in Color, and numerous stores that never reopened after the unrest.
District Attorney Larry Krasner said a creative response was warranted given the unique motivation of the crimes: “an outcry” during a historic moment of protest against the police killing of George Floyd.
“The plan simply put is to have accountability without the necessity for convictions,” he said. “The plan is to make sure that as best we can the defendants and the defense satisfy their obligations to the people they harmed, which includes some small business owners, many of them business owners of color. The plan is also not to repeat the mistakes of the past.”
Those mistakes, he said, include failing victims on restitution and embroiling too many poor people in the justice system.
In court in February, Municipal Court President Judge Patrick F. Dugan expressed caution. “I am not determining that I am accepting these offers,” he said. In a statement this week, he said he remains open to the idea but was still awaiting details. “As a proponent of proven and effective diversion, I look forward to seeing their proposal.”
The proposed program itself was put forward by defense lawyers, including the Defender Association of Philadelphia and Up Against the Law Legal Collective.
Defense attorney Troy Wilson, an Up Against the Law member, said he was “tired and angry” after years of watching poor, marginalized people get dragged ever deeper into the legal system. “Let’s come up with a system that’s never been done before. We can take the cases back in some respect to the community so the community can itself resolve some of these cases through education, mediation, confrontation, reconciliation, and most of all healing.”
He looked to the Rev. Donna Jones of the Metropolitan Christian Council of Philadelphia, who runs a growing, neighborhood-based restorative-justice network in Philadelphia called the Restorative Cities Initiative. She’ll run restorative-justice education sessions for all participants. Those who opt in will join restorative circles, where defendants, businesspeople, and community members will be able to voice the harm they experienced and what is needed to repair it.
Other components of the plan include needs assessments, referrals to education and job opportunities, and, for those who don’t buy into the restorative-justice model, community-service obligations. For those who complete the program successfully, prosecutors plan to drop charges so their records can be expunged.
Her restorative-justice circles have already been quietly rerouting incidents away from the legal system, she said.
In one case, a young man struck his friend in the head with the butt of a gun during a brawl. They agreed to talk through it in a restorative circle with community members and a Philadelphia police community relations officer.
“What [the injured man] wanted was a new pair of sneakers, because he got blood on his sneakers, and $50,” Jones said. “The community said they wanted these guys to go to school every day.” They all signed a contract, and the officer warned if they broke it there would be an arrest. “No one broke it,” Jones said. “And no one needed to go to jail.”
What it will take to make damaged businesses whole won’t be that simple.
One North Philadelphia business owner, whose losses exceeded $150,000 in property damage and stolen inventory, said the plodding pace of the legal system has been matched only by the reluctance of his insurance company. The only money he’s seen so far is a $10,000 grant from the Merchants Fund. He declined to be named for fear of being targeted again.
“I feared for my life,” he said, as he guarded the store to prevent further losses. Now, he feels abandoned by the city.
He learned about the restorative-justice proposal from a reporter, and took offense at the proposal. “Why should they get a pass? They were all old enough. They knew what they were doing. If I can help it, no. You committed a crime, you have to pay for it.”
Nick Shenoy, chief executive of the Asian American Chamber of Commerce of Greater Philadelphia, said these were not minor crimes. Some buildings were burned — especially alarming since many Asian business owners live above their shops. But many are fearful to speak out, or even to come forward and seek compensation, Shenoy said.
“There is no assurance from the city of protecting them. They seem to be more concerned with protecting the offenders,” he said. “The question that keeps on coming is: Are we safe to do business? I don’t think we have that answer.”
In court, Retacco said the DA’s Office has been contacting businesses for months: Some were sharing information, but others were defunct, did not return calls, or did not wish to cooperate with prosecutions.
City and police leadership tentatively support the program, a spokesperson for Mayor Jim Kenney said, with the understanding that violent crimes, gun crimes, and crimes against police would be excluded.
Outreach to businesses has continued separate from the criminal cases. Last year, the city and the Merchants Fund distributed more than $1.5 million in grants to 186 affected businesses. In March, the city and PIDC awarded a second round of grants, totaling $12 million, to 914 restaurants and gyms affected by the pandemic, including 71 damaged due to unrest.
Paul Hetznecker, a defense lawyer and member of Up Against the Law, said some businesspeople, including those who were burglarized last year, have expressed enthusiasm for the restorative model.
“The issue of restitution is an ongoing issue and we’re going to continue to seek public money as well as private money,” he said.
Meanwhile, the first restorative-justice education sessions will begin this weekend.So far, every Defender Association client offered the program has accepted enthusiastically, assistant defender Jonathan Strange said.
“A lot of people are really relieved that there is a pathway for them to exit out of the criminal justice system and avoid a conviction, and particularly relieved that there is a way for them to do that by giving back to their community and reengaging with their community,” he said. “I think that’s a pretty inspiring outcome for all of this.”