Not Guilty: Are the Acquitted Innocent? is an excellent new book by Dan Givelber* Northeastern Law School professor, and Amy Farrell Northeastern Criminal Justice School professor.

In this easy to read book, the authors provide valuable information and insights into how judges and juries behave, and how understanding acquittals better (acquittals occur once in every 100 cases) could improve our justice system.

“The pervasive problem of crime fuels the belief that we do not prosecute the innocent,” the authors say.

Not only is it important that we understand what difference it makes if acquitted people are considered innocent, but the authors also address the rationale and effects of our plea bargain system.

While the book does not mention restorative justice, it provides rationale for restorative interventions at the sentencing stage of cases, and for corrections.

The book stunningly points out the fact that 97% of all convicted people pled guilt. The authors point out that: “only 3 percent of all criminal cases were actually resolved through trials in which judges or juries rendered verdicts of guilt or innocence. Of the small proportion of cases that did go to trial, approximately one-third resulted in acquittals. Thus, although acquittals represented only a tiny fraction of criminal dispositions. They represented a much larger proportion of those rare cases that did go to trial.”

Scary too is the policy justification for underfunding public defenders (compared to how prosecutors funded): “The belief that the vast majority of the acquitted really are guilty rests on the assumption that neither the police nor the prosecutors will pursue criminal charges against innocent people. The authors go on to quote legal scholar and judge Richard Posner who says “A bare-bones system for defense of indigent criminal defendants may be optimal.”

The book also reveals startling details about the overall attitudes of judges, prosecutors and defense attorneys, who are all far more likely to have biased views concerning race than jurors.

Everyone working in criminal court and criminal process policy makers should read this book. Thank you professors Givelber and Farrell.

*He happens to also be one of the funniest law professors ever. He taught me torts in 1980 and I will always remember the innocent champagne cork popping off a boat that resulted in a series of hysterical events that made up the facts of my first law exam (and something I think about every time I see a bottle of champagne being opened).

Bruce Feiler’s March 17, 2013 New York Times article about happy families and how they influence individual family member’s health and happiness, supports our restorative justice and solution focused work http://www.nytimes.com/2013/03/17/fashion/the-family-stories-that-bind-us-this-life.html?pagewanted=all&_r=0

Feiler discusses how one night he pondered: “What is the secret sauce that holds a family together? What are the ingredients that make some families effective, resilient, happy?” and went on to learn what he could to answer these questions.

His research led him to the work of psychologists Marshall Duke and Sara Fivush, which showed: “The more children knew about their family’s history, the stronger their sense of control over their lives, the higher their self-esteem and the more successfully they believed their families functioned.”

The restorative reentry circles we do, with incarcerated people and their reentry planning, which is based on reconciliation with their loved ones as well as most solution focused and restorative processes people participate in, gives families the opportunity to tell the stories about healing.

Being transparent and open about our struggles with our loved ones is strength building. Sharing our understanding that we will not always get what we want in life, and that we all will naturally change and eventually be leaving this world, is a great gift we can give our children and our families. It does not have to be a grim and hopeless message and story either.

Restorative justice, solution focused and other approaches that look at hardship as something we can discuss and find ways to cope with help us find happier lives.

While some people believe that most incarcerated people come from severely “dysfunctional” families, that is only one story, and one that many others tell themselves (in fact it was this possible story that motivated Feiler himself to research the question and write the article). Our experience with incarcerated and other people involved both as defendants and victims in criminal cases, shows one main similarity between many of the people: they are poor economically. Poverty, however, does not mean dysfunctional. We have had the honor of witnessing countless families and individuals that are resilient and strong despite being poor financially and having had some involvement with the justice system.

Thanks for great work Mr. Feiler, et al!

]]> http://www.lorennwalker.com/blog/?feed=rss2&p=144 http://www.lorennwalker.com/blog/?p=143 http://www.lorennwalker.com/blog/?p=143#comments Mon, 04 Mar 2013 02:59:39 +0000 Lorenn http://www.lorennwalker.com/blog/?p=143 An article by Pauline Jelinek: War zone killing: Vets feel ‘alone’ in their guilt, describes an ideal area where restorative justice could help.

Jelinek explains “moral injuries” are not the same thing as post-traumatic stress syndrome (PTSD). “Clinicians suspect some troops are suffering from what they call “moral injuries” — wounds from having done something, or failed to stop something, that violates their moral code.”

Neal Conan National Public Radio (NPR) commentator sums up the difference between moral injury and PTSD nicely: “Whether you call it battle fatigue or shell shock or PTSD, we’ve come to accept that the trauma of combat can leave profound psychological scars. But how do you describe the damage from actions that violate one’s values, but don’t involve trauma, injury from horrific scenes that betray core moral beliefs?” Conan interviewed Marine Tyler Boudeau, and psychiatrist Jonathan Shay who’s worked with veterans for over 20 years in addressing this important question.

After treating soldiers like Tyler, Shay said he coined the term moral injury “from the story that the great ancient poet Homer tells of Achilles in “The Iliad.” That is the story of moral injury and the terrible consequences of it.”

According to Shay the response to moral injuries does not come in the form of any medical intervention applied by professionals, but instead he says: [R]ecovery happens only in community. And typically, the first community in which that is going to work is the community of fellow veterans.”

Restorative practices are community based processes that address behavior that has harmed others and looks for ways to try and make things right and to repair the harm.

John Braitwaite, one of the world’s most respected restorative justice experts, says that restorative processes are about giving “the stakeholders affected by an injustice an opportunity to tell their stories about its consequences an what needs to be done to put things right…done within a framework of restorative values that include the need to heal the hurts that have been felt (p. vii Restorative Justice and Responsive Regulation). Stakeholders can be anyone harmed including members of the community who do not personally know the person who caused the harm.

While restorative justice is commonly thought of for use in criminal cases, it has vast applications in civil settings. Our work in a variety of settings in Hawai’i and also many other places as discussed in Restorative Justice Today: Practical Applications, shows that face to face meetings are not required for healing.

We have witnessed healing in processes for people whose behavior has hurt others, without those directly hurt participating, and for people who’ve been hurt, who don’t meet with those who hurt them (or who don’t even know who hurt them–most crimes go without any arrests or any perpetrators being identifed).

Restorative justice could also help veterans returning from deployment who are reentering the community. Reentry planning circles that also address restoring relationships with loved ones and the wider community, could help with this transition and also address any moral injuries the soldiers have suffered. The circle could also address any suffering their families have naturally suffered due to the loss of their presence in the home, etc., while the were away.

Thank you Tyler Boudeau, Dr. Shay, Neal Conan and Pauline Jelinek for your efforts.

The NYTs article, and later a Today show about the case, has worried some including Ted Wachtel, educator and founder of the International Institute for Restorative Practices, who discussed his concerns for the Huffington Post’s, Restorative Justice is Not Forgiveness. Ted has been a strong and very effective restorative justice promoter for 20 years and his Huffington Post article nicely describes restorative principles.

Putting aside any “forgiveness controversy,” Tullis’s article made an important contribution by describing how restorative justice can be used at the plea agreement stage of a murder case, by “vividly tell[ing] the story from the perspectives of the different parties that took part in the process” as pointed out by Hadar Aviram, law professor at the University of California Hastings College of Law in San Francisco.

Restorative justice is used for serious crimes including murder (it is especially effective for this level of serious felonies), but usually it’s only used after a person has pleaded guilt. Last year the Oprah Winfrey Network did documentaries of 4 cases concerning homicides that were held in prisons (I facilitated one).

Face-to-face restorative justice meetings are almost always used after conviction or for diverting cases before they go to the criminal justice system or trial for resolution. I’ve never heard of a murder case being diverted, neither had Tullis who wrote, “no one I spoke to had ever heard of restorative justice applied for anything as serious as murder” for diversion. Yet, it would be possible to divert a murder case to a restorative process, and maybe any that have been diverted have not been discussed because of the potential for political backlash (e.g. alleged failure to be “tough on crime.”)

Restorative processes are especially powerful because they give individuals some control in participating (or choosing not to participate) in addressing how they’ve been affected by crime and what might help them deal with the consequence and possibly heal.

The failing of the criminal justice system to allow the individuals directly affected by a crime to have a role in a process addressing their suffering was discussed by Nils Christie in his seminal 1976 published speech: Conflict as Property, (1977, British Journal of Criminology).

In arguing that individuals should be allowed to participate in addressing their conflicts, Christie points out that conflict is valuable for human development. “Conflicts,” he says, “ought to be used, not only left in erosion. And they ought to be used, and become useful, for those originally involved in the conflict” (1977, p. 1).

Christie further explains: “conflicts represent a potential for activity, for participation. Modern criminal control systems represent one of the many cases of lost opportunities for involving citizens in tasks that are of immediate importance to them. Ours is a society of task-monopolists. The victim is a particularly heavy loser in this situation. Not only has he suffered, lost materially or become hurt, physically or otherwise. And not only does the state take the compensation. But above all he has lost participation in his own case.”

Restorative processes give harmed people a voice in expressing their feelings, in trying to cope, and maybe even in working to find some meaning in their loss and suffering.

It is not a radical new idea to allow victims the opportunity to say what they want at sentencings. In federal, and most state felony cases, before a defendant is sentenced, judges are required to consider “pre-sentence reports.” Usually probation officers or other officials who make the reports speak directly with the parties, including crime victims, to determine how they’ve been affected by the crime, which is then reported to the judge before sentencing. Also most states provided for “victim impact statements” where harmed people can speak directly to a judge in court at the hearing before the judge delivers the sentence. Here the parties had the opportunity for more meaningful participation.

In this case, the defendant pleaded guilty, and wanted to participate in a restorative meeting prior to being sentenced. But it was the parents of his murdered girlfriend, Andy and Kate Grosmaire, who initiated movement for the restorative process after learning about it from prison Chaplin Allison DeFoor. The defendant’s parents helped tremendously too to make a restorative conference eventually happen.

Sujatha Baliga, a restorative lawyer and facilitator, from California did a great service in this case, and in forging a new path for using restorative justice. The defendant’s lawyer, Greg Cummings, who participated with him in the restorative conference, was also thoughtful in helping his client participant. Also the Florida prosecutor, Jack Campbell, did the right thing in participating in the restorative conference to the extent that he did. Although he did not agree to the plea bargain terms that Kate and Andy Grosaire wanted, he listened to them and was influenced by them, and he also responded positively to their desire to participate in a restorative process and helped it happen.

After the process Campbell said: “I think the ultimate decision on punishment should be made based on cool reflection of the facts and the evidence in the case” . . . “I don’t think those conferences are the best prism for that.” His statement reflects how lawyers and judges are trained to think that only the facts and law, and not feelings should guide sentencing decisions.

Our criminal justice system should follow this principle to ensure that our communities’ expectations for behavior are established in defining what a crime is and for making arrests and bringing charges for violations of law, but restorative justice in not about establishing expectations for public behavior, restorative justice is about individual healing, after a violation of society’s standards.

Allowing people, who want to share their stories and their pain, is respectful and empowering for them. It gives them the benefit of participation, which Christie says is usually “stolen” by legal professionals.

Hopefully, Campbell and more making criminal law policy decisions come to appreciate, as Sujatha has, that individuals harmed by crime, those who did the harming, and the wider community, should be given the opportunity for emotional expression, and hopefully for some healing in criminal cases.

The facts of a criminal case cannot be changed, but how individuals feel and think about them can change, and this is what can lead to healing. Restorative processes give individuals an opportunity to address what they need to heal.

Howard Zehr interviewed Sujatha to discuss the Florida case, which is available on line. The webair also includes video. Hearing and seeing Sujatha and Howard discuss the case is enlightening (if you try to access it outside the US and have any difficulties, please let me know so it might be fixed—please be careful to download the player to watch it as instructed).

Thank you to Paul Tullis for the article; Ted Wachtel for his thoughtful response; Sujatha for being a restorative lawyer and facilitator; Jack Campbell and Greg Cummings for their wise lawyering; Howard Zehr and all his contributions; Allison DeFoor for suggesting restorative justice to the Grosmaire family who lost their beloved daughter and faced a horror with courage giving others something to learn from; to the McBride family who had to face their son Connor’s horrible behavior, and who lost him too in many ways; thank you also to Connor for being accountable; and finally, thank you to lovely Ann Grosmaire whose short life projecting hope and love has been a source of inspiration to many.

]]> http://www.lorennwalker.com/blog/?feed=rss2&p=142 http://www.lorennwalker.com/blog/?p=141 http://www.lorennwalker.com/blog/?p=141#comments Mon, 04 Feb 2013 15:12:47 +0000 Lorenn http://www.lorennwalker.com/blog/?p=141 Hawai’i’s daily newspaper The Star Advertiser published an oped I wrote on Sunday February 3, 2013, about the need for restorative justice in schools. The piece is reprinted below.

Howard Zehr also wrote an interesting blog about “Restoration is a metaphor” recently https://emu.edu/now/restorative-justice/2013/01/31/restoration-is-a-metaphor/ and in it he announced a  webinar will air on February 27, 2013 “The Promise & Challenge of Restorative Justice Practices in Schools” on Feb. 27: https://www.emu.edu/cjp/restorative-justice/webinars/rj-in-schools/

The webnair technology that Howard is using is amazing, and I highly recommend signing up for this to learn about restorative programs for schools. The guest speakers - Nancy Riestenberg and Rita Renjitham Alfred - are also excellent and much can be learned from this upcoming internet event.

_____________________________________________________________________________________________

Implement ‘restorative justice’ in schools

By Lorenn Walker for Star Advertiser newspaper

Feb 03, 2013

“Your son’s been hit in the head by another student,” the vice principal said when I answered the phone one day in 1999.

My son was 13 and in the eighth grade. The vice principal added, “The other student has been suspended.”

“Please don’t suspend him,” I asked, fearing it would make things worse.

“It’s school policy,” the vice principal responded.

When this occurred, I was conducting a restorative justice pilot project. Restorative justice focuses on healing, compared to the criminal justice system’s main focus on retribution.

In our project, more than 100 youths arrested for assaults and other offenses were diverted into restorative conferences instead of the justice system.

Youths who admitted wrongdoing met with the person they hurt. The victims and juveniles brought supporters, usually family members, with them to the conferences. Other affected community members, including school representatives when the incidents happened at schools, also participated. A facilitator guided the group’s discussion about how people were affected by the wrongdoing and what might help repair the harm.

Participating in the conference was remarkable. While I was a firm supporter of restorative opportunities for youths and adults involved in wrongdoing, participating in one solidified my belief. Our conference included the boy who hit my son, his father, my son, my husband and the principal of the elementary school both boys previously attended (the intermediate school they attended could not accommodate the conference).

Meeting together not only prevented future conflicts between the boys but also helped build friendship between our families. Before the conference, each of our families had made incorrect assumptions about the other. Sitting together in the circle, we learned that we were all doing the best we could and that we all had good intentions. It made us more empathic and compassionate toward each other.

All indigenous cultures, including Hawaiians, have circle processes. Westerners had them, too, until the Norman Conquest, when the king, and later government, took control of resolving personal conflicts.

There is renewed interest in restorative justice in the modern world with research showing its positive results. More victims prefer it to retributive responses, and in most types of cases, repeat crime decreases. The United Nations cites our Honolulu juvenile study as an example of a restorative diversion program.

Today, if this school incident were to happen in Colorado or California, the boy who hit my son probably would not be suspended. Instead, he likely would be referred to a restorative intervention.

We need restorative programs in Hawaii schools. “Zero tolerance” and suspending students for fighting only pushes the problem into the wider community. Schools should be a place where youths — and adults, too — learn how to address conflict. We cannot banish most students with bad behavior from school and expect them to learn how to get along and care about others.

Restorative approaches can help build relationships for individuals and make our schools and communities stronger. It is a ripple effect. When one person cares about another, others do, too.

While we need to maintain a strong criminal justice system, and teach students there are boundaries, currently we spend more resources on blaming and punishing  offenders, and far less for victims.

We need to return to practices that focus on healing, which restorative justice provides.

Thank you for expressing your opinion on this Mr. Bruno. As suggested by some, and I agree, restorative justice and positive behavior support approaches are consistent and compliment each other.

Instead of framing this as: “’Restorative Justice’ Vs. PBIS,” I suggest: Restorative Justice for Positive Behavior Support or PBIS. Kris Miner also wrote a blog 2 years ago: School-based Restorative Justice in PBIS (positive behavioral interventions and supports): http://circle-space.org/2010/12/08/school-based-restorative-justice-is-pbis-positive-behavioral-interventions-supports/.

Both restorative justice (RJ) and positive behavior support (PBIS) use public health principals for addressing wrongdoing and harm. In fact my blog developed in 2008 is based on the idea that restorative justice is a public health approach: http://www.lorennwalker.com/blog/.

Public health developed and has used the three levels of prevention known as primary, secondary and tertiary to address disease for decades. A public health approach is often suggested for violence prevention http://www.vetoviolence.org/basics-primary-prevention.html. PBIS also seeks to prevent harm and promote good student behavior using the three prevention levels first described in public health http://www.scribd.com/doc/27069628/Handbook-of-Positive-Bahavior-Support.

Kris Miner developed a helpful one page paper on how the primary, secondary and tertiary levels apply to restorative justice for bullying that can be downloaded from her above mentioned blog.

Many throughout the world including Hawai’i, Hull, England, Washington D.C. at the Columbia Heights Collaborative, have been using a solution-focused approach, which is an example of a PBS application, with restorative justice. Both RJ and solution-focused approaches compliment each other http://www.freepatentsonline.com/article/Journal-Instructional-Psychology/289619985.html

RJ addresses how harm can be repaired, which helps prevent furture harm, and a school using PBIS can use RJ as an intervention when misbehavior occurs.

Learning to facilitate circles for addressing conflict is something most teachers can learn. In the Montessori method of education, over 100 years old, circles for group learning are an important process for beginning each school day. And according to Peter Senge, organizational management expert, “no indigenous culture has yet been found that does not have the practice of sitting in a circle and talking” (Dialogue: The Art of Thinking Together, Isaaccs). Even our modern Western cultures have a history of individuals meeting in groups personally to deal with conflicts, instead of courtrooms with professionals speaking for us (Van Ness & Braithwaite). Circles are a natural human process.

Thank you again for your column. Hopefully all our efforts and further communication and learning will lead to more peaceful schools and happier people.

]]> http://www.lorennwalker.com/blog/?feed=rss2&p=139 http://www.lorennwalker.com/blog/?p=138 http://www.lorennwalker.com/blog/?p=138#comments Sat, 17 Nov 2012 20:22:25 +0000 Lorenn http://www.lorennwalker.com/blog/?p=138 Thank you for expressing your opinion on this Mr. Bruno. Alternatively please consider that restorative justice and positive behavior support approaches for schools are consistent and that they compliment each other.

Instead of framing this as: “’Restorative Justice’ Vs. PBIS,” I suggest: “Restorative Justice for Positive Behavior Support” and have just published an individual blog on it. Kris Miner also wrote a blog 2 years ago: “School-based Restorative Justice is PBIS (positive behavioral interventions and supports)” http://circle-space.org/2010/12/08/school-based-restorative-justice-is-pbis-positive-behavioral-interventions-supports/.

Both restorative justice (RJ) and positive behavior support (PBS) approaches use public health learning approaches for harm and addressing wrongdoing. My blog developed in 2008 is based on the idea that restorative justice is a public health approach: http://www.lorennwalker.com/blog/.

Public health developed, and has used the three levels of prevention known as primary, secondary and tertiary to address disease for decades. A public health approach is often suggested for violence prevention http://www.vetoviolence.org/basics-primary-prevention.html. PBS also seeks to prevent harm and promote good student behavior using the three prevention levels first described in public health http://www.scribd.com/doc/27069628/Handbook-of-Positive-Bahavior-Support.

Restorative justice practitioner Kris Miner has developed helpful one page paper on how the three levels of primary, secondary and tertiary apply to restorative justice for addressing bullying:

Many throughout the world have been interested in using solution-focused brief therapy, an example of PBS http://www.freepatentsonline.com/article/Journal-Instructional-Psychology/289619985.html, with our restorative justice applications for years. Both approaches, RJ and the solution focused approach (a PBS), compliment each other.

RJ addresses how harm can be repaired, which can help prevent future harm, and a school using PBS can use RJ as an intervention when misbehavior occurs.

Circles for learning have been part of the Montessori Method of education for almost 100 years now. And according to Peter Senge, who has studied organizational management for years, “no indigenous culture has yet been found that does not have the practice of sitting in a circle and talking.” Even in Western cultures, individuals used to meet personally, instead of formal settings like court today, to address conflicts to many including Dan Van Ness and John Braithwaite.

Please look to restorative applications in Hull, England, Washington, DC, and what we’ve done here in Hawai’i, with solution focused approaches, which are compatible with and promote the PBS goal of increasing positive social behavior.

Thank you again for your column. Hopefully all our efforts and further communication will lead to more peaceful schools, and happier people.

]]> http://www.lorennwalker.com/blog/?feed=rss2&p=138 http://www.lorennwalker.com/blog/?p=136 http://www.lorennwalker.com/blog/?p=136#comments Mon, 02 Jul 2012 07:09:05 +0000 Lorenn http://www.lorennwalker.com/blog/?p=136 “Oh yes, I would like to talk to them!” says Karen Klein (fn.1) She is the 68-year-old school bus monitor from Rochester, New York who four middle school boys mercilessly ridiculed, swore at, and even poked, recently.

Over 8 million people have viewed the You Tube(fn.2) of the incident tapped by a boy who said he wanted to send in to the Tosh.0 program (fn.3). A Canadian man saw the video and started an online collection for donations to send Klein on a vacation. He hoped $5000 could be raised (fn.4). So far over $650,000 has been donated along with a trip for 9 (Klein has 8 grandchildren) to Disneyland from Southwest Airlines and Disneyland (fn.5).

After the video went viral on the Internet, the boys and their families received death threats. Klein’s daughter wisely asked, and pointed out that, “We would like people to stop harassing the family and the kids. That’s another form of bullying” (fn.6).

Klein said she did not want the boys criminally prosecuted (fn.7) and instead hoped that the event would, “Teach them a life lesson” (fn.8).

The boys have been suspended from their regular school and cannot ride the bus for a year. Klein is reportedly pleased with the punishment. All four boys have apologized to her and have taken responsibility for their bad behavior.

Klein, her family, the boys and their families would benefit from restorative justice.

Restorative justice views crime and wrongdoing as something that creates wounds, which need healing. A private and respectful restorative meeting where each person is treated with dignity, even the boys who behaved so poorly, would allow everyone to express their feelings, discuss the incident, and what possibly could be done to repair the harm.

Restorative justice recognizes there is no going back and instead looks to what might be done now to repair harm and heal pain. Restorative justice applies public health principals in dealing with wrongdoing. Restorative justice asks what people need to best deal with the effects of the crime, instead of deciding who should be blamed and how they should be punished.

“I want to ask them why they did it,” says Klein. She should be given this opportunity.

Some people believe it should not be up to Klein if the boys are prosecuted. A person who responded to the Washington Post article cited in footnote 7 said, “The decision to press charges or not should be out of the victim’s hands, since these degenerates are a public menace.”

Taking the power away from people harmed by wrongdoing and putting it solely in the hands of government alone will not keep our communities safer in these kinds of cases. The Rochester police department thankfully understands this, and sees Klein as having the right to press charges or not.

Unless, as Klein aptly points out, these four boys “learn a lesson” it is unlikely they will change their behavior in the future. Our justice system should work to rehabilitate people, especially youth. Also people who hurt people outside of prison can hurt people in prison. It is not acceptable for prison guards and other incarcerated people to be harmed by wrongdoing in prisons. We need rehabilitation even for people sentenced to prison for life.

Wrongdoing and conflict can make communities safer when people like Klein, the boys who hurt her, and all their families, are involved in determining what is needed for them to heal.

Restorative justice for these four boys is a good way for them to “learn a life lesson,” to get Klein the answers to the questions she has, and it is something that can help keep our communities safer now and in the future.
__________
1 http://www.usatoday.com/news/nation/story/2012-06-30/bus-monitor-bullying-punishment/55948658/1
2 http://www.youtube.com/watch?v=l93wAqnPQwk&feature=player_embedded
3 http://toshcommunity.comedycentral.com/-/videocategories and
4 http://www.indiegogo.com/loveforkarenhklein
5 http://www.nydailynews.com/new-york/students-bullied-bus-monitor-karen-klein-suspended-year-article-1.1105212
6 http://edition.cnn.com/2012/06/22/us/new-york-bus-monitor/index.html
7 http://www.washingtonpost.com/national/bullied-ny-bus-monitor-wont-press-charges/2012/06/21/gJQAf20EtV_video.html

My experience in working in Hawai’i prisons since the late 1970s (before the “war on drugs” when we had less than 20 women imprisoned in our state compared with about 600 today), and visiting many prisons on all continents except Africa, is that most imprisoned people are poor people. The legal system favors people with money who can pay for good legal representation.

Bryan Stevenson, who works with people serving life sentences and on death row, is right that our system disturbingly favors those with money and punishes the poor more harshly http://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice.html Dorothy Roberts and Michelle Alexander make important points too on how racial biases affect who is incarcerated in the United States http://www.nytimes.com/2012/03/07/books/michelle-alexanders-new-jim-crow-raises-drug-law-debates.html?pagewanted=all While African Americans on the US continent and Hawaiians in Hawai’i are disproportionately imprisoned compared to other ethnic groups, and they are also more often living in poverty compared to other groups.

Far too many imprisoned people in the US and in Hawai’i are there for drug related crimes (both non-violent and violent offenses). After working with hundreds of these people, I believe that most of them used drugs to self-medicate. Being born into a dysfunctional family and/or lacking resources is not an excuse, but it helps explains things: “People do the best they can with the knowledge they have.”

We should hardly be surprised when people who feel bad medicate themselves. Our culture teaches people to use drugs and most of them are legal e.g. alcohol, cigarettes, Ritalin, antidepressants, etc. A lot of people use meth and other stimulants to feel more energy because they are depressed. They want to feel like “superman” because they feel awful.

We have criminalized social problems (poverty and racism) and we suffer the consequences, e.g. lots of recidivism by formerly imprisoned people. And please forget about “throwing away the key” because that is unsustainable. Over 95% of all imprisoned people are eventually released.

The problems of substance abuse and crime will not be “cured” by taking children away from dysfunctional homes — we have done that for many years and we have often made the problems worse — the medical model of “cutting out the tumor” (in this case a messed up family) does not always save the patient. Kids who go to foster care many times end up unattached to loving adults and instead institutionalized.

We can learn from Portugal’s example and treat all crime that is drug related like a public health problem and stop criminalizing it http://www.scientificamerican.com/article.cfm?id=portugal-drug-decriminalization

This includes abandoning “zero tolerance” and understanding that many substance abusers will relapse sometimes. We can’t just give up on them when they do.

Imagine if you have diabetes and you eat some junk food and you go see you doctor and she sees you gained weight and you confess to the bad eating, is she going to throw you out of her office and refuse to keep helping you get well?

One way we could improve things would be by giving people a chance to be accountable for bad behavior. The legal system simply hammers people for bad acts and offers no opportunity to step up to the plate and work on repairing the harm. When is a person convicted of a crime ever asked: “What are you going to do to make things right?”

Instead of being restorative, our legal system focuses mainly on punishment and pain. Simply look up the shocking differences that we spend on convicting and imprisoning people compared to helping crime victims with compensation and their other needs.

Criminologists know that most drug addicts and criminal offenders eventually out grow and age out of their bad behavior without treatment.* It is called “desistance theory.” Shadd Maruna discusses desistance research including his own of over over 1000 people coming out of prison in Making Good: How Ex-convicts Reform and Rebuild Their Lives.

Most people will eventually desist from crime and drug use with the support of law abiding friends and from having meaningful employment (for each individual to determine). Our prison and legal systems make things worse for people (see Phil Zimbardo’s work with The Stanford Prison Experiment and his book The Lucifer Effect: When Good People Turn Evil).

When we treat someone inhumanely we should not be surprised when they behave that way. Let’s remember and act accordingly: “If we treat people as they are, we make them worse. If we treat people as they ought to be, we help them become what they are capable of becoming.” ~ Goethe

*Treatment can hasten desistance and our work is aimed toward that by helping people be accountable, finding ways to restore positive relationships, get employed, stay clean, etc. For more information on this work please see: http://www.uscourts.gov/uscourts/FederalCourts/PPS/Fedprob/2010-06/06_restorative_circles.html

And thank you Roger Epstein for motivating me to write this blog! Your work with the Hawai’i Forgiveness Project is invaluable http://www.hawaiiforgivenessproject.org/

The article describes how family members are also harmed by their loved one’s criminal behavior. It shows the need for restorative interventions that can help many families deal with the harm they suffer.

The article describes how lawyer Nader Hasen, whose cousin is the psychiatrist from Ft. Hood who shot and killed people, met with one of the murdered victim’s relatives. Today the two are working to prevent similar horrors.

Our mainstream justice system largely ignores the needs of those harmed by crime and instead mainly focuses on identifying and punishing people who commit crimes.

Here is a copy of my comments to the Time’s piece:

Thank you Mr. Kovaleski and NYT for bringing attention to this serious problem basically ignored by the mainstream justice system. Restorative justice on the other hand offers hope. For the last 6 years we have been providing a process for families to meet with loved ones who are accountable for wrongdoing in prison. We have provided 73 Huikahi Restorative Circles to date that 369 people have participated in. The healing these Circles have brought to children, parents and other family members has been overwhelming, 100% of the participants, that includes prison staff, believe the process was positive. Here is a paper on line about the process: http://www.uscourts.gov/uscourts/FederalCourts/PPS/Fedprob/2010-06/06_restorative_circles.html Thank you again for this piece.