I LOVE "Grits For Breakfast"

I love to read.  I like to write.  Although I happily compose written work every single day on behalf of clients and their families, writing is much more difficult and tedious than reading, which is why I am in such awe of the blog "Grits For Breakfast".  Nearly every single day for the past 10 years, this blog with the unusual name has put out interesting and thought-provoking blog posts.  Each and every post generally contains at least a link or two to other primary or related sources.  I learned about it 5 or 6 years ago, and I have been reading it somewhat religiously ever since. It's my favorite blog, bar none! I'm not ashamed to admit that my own blog is high school junior varsity basketball, and "Grits" is the NBA.  

Grits is the work of one man, from what I can tell.  One very, very talented, intelligent, and dedicated man, Scott Henson.  I have never met Mr. Henson, and I wouldn't know who he was if he was standing right in front of me, although I would love to meet him someday and tell him how indebted I am to him for giving me a free daily dose of Texas criminal justice news and information for years now.  Here's what Mr. Henson says about his own blog:

Grits for Breakfast remains an uncompensated hobby: All opinions are my own unless otherwise specified. I also maintain a seldom-updated personal blog called Huevos Rancheros. I've maintained Grits independently from any group or party because I want it to be place to discuss ideas in all their nuance, not just a spokesblog for this or that organization. The problems facing the criminal justice system are enormous, and we need unfettered, creative thinking to identify solutions that can work for everybody and keep us safe and free. It's my sincere hope that Grits contributes to that process in some small way.

I do not read every single post put out by Grits, and some days I have to go back and look at the posts of the past week because I have been so busy.  However, I find myself reading a pretty high percentage of the posts, and I feel a great deal of gratitude to Grits and Mr. Henson on a regular basis.

I encourage anyone who is passionate about improving our state's criminal justice system to read Grits religiously, and, if you are in a position to do so, consider donating to this wonderful and free resource provided by Mr. Henson.

Restorative Justice: We Must Improve The Way We Deal With Crime

My practice necessitates spending a considerable amount of time thinking about incarceration.  I think about what it accomplishes and what it does not.  I've interviewed well over 800 prisoners convicted of one or more felonies.  Sometimes, the sentences are short, a few years or so.  Other times, the sentences are 20, 30, 40, or more years.  Most of the time, I am left feeling that incarceration, particularly after the first couple of years, accomplishes almost nothing, and at enormous taxpayer expense.  I have been studying a movement called "Restorative Justice".  In my opinion, it represents one of the most powerful and logical methods of promoting healing for the wrongdoer and the victim, and it has tremendous potential to enhance the important goals of rehabilitation and decreased recidivism.

Restorative Justice is almost a completely foreign concept to most prosecutors, police, judges, and prison officials.  Outside of academia, practically nobody in the United States knows or cares what restorative justice is.  And that is a shame.  Perhaps the most important group of people who need to understand and entertain the possibilities contained in this social movement are the politicians.  After all, they make the laws, and therefore, they are the ones who could most easily bring the benefits of restorative justice into the ineffective and over-priced justice system we currently have here in Texas and in the U.S.   

Ok, so what am I talking about anyway?  What is "restorative justice"?

Restorative Justice is an effort to transform the way we think of punishment for wrongful acts. This can apply to all wrongful acts, not just criminal acts.  

When a crime or other bad act occurs, it effects victims, offenders, and interested bystanders, such as family members, employers, employees, friends, etc.  It also has an effect on the community at large, and tends to have a de-stabilizing effect.  These bad acts can be seen as cracks in the foundation of our community, and they create needs and responsibilities for the direct participants of the act, as well as for the larger society in which the act occurred.  

Restorative justice is the name given to a variety of different practices, including apologies, restitution, acknowledgement of harm, as well as other efforts to promote and provide healing for all, and reintegration of offenders into their communities, with or without additional punishment.

Although restorative justice usually involves a trained facilitator who oversees direct communication between victims and offenders, there is also usually partial or full representation of the community interest at large.  It is a formal setting in which informal, but critically important, communication is fostered.  The basic goal is the complete and sincere acknowledgement of fault by the offender, and restitution of some sort to the victim. The broader goal is the approval of the community that the resolution is also in the best interest of society as a whole.  The restitution to the victim usually includes the expression of genuine remorse and sincere apologies, which can be written, oral, or both. There is often a new understanding gained by both victims and offenders during this process, and there are often agreements made about future behaviors, including financial restitution, where ever possible and appropriate.  

The ideal of restorative justice involves achievement of the four "R's"  

Repair     Restore     Reconcile      Reintegrate

Although we can trace the roots of restorative justice at least as far back as classic Greek, Arab, and Roman society, modern restorative justice came about as a response to failed criminal law models of retribution and rehabilitation.  In other words, a strictly punishment-based model for dealing with crime had proven completely ineffective at deterring future crime, and rehabilitation programs were only successful at times, but were wholly unsuccessful in all cases where the offender did not undergo the inner transformation needed to prevent future criminal behavior.  

Any system we choose to employ must have, as its foundation, the goal of reducing or eliminating future criminal behavior, from the least serious to the most serious offenses.  Such a goal, if realized, creates a safer, more peaceful, less violent, and more harmonious society.

The history of criminal justice and punishment is one where the state has continuously gained more and more control over its citizens in the name of "safety".  The costs to taxpayers have become so extreme that people are finally starting to ask the important questions about whether the money is really being spent the right way.

Restorative justice could even be effective as a hybrid to incarceration.  For example, if a crime is a 1st degree felony under Texas law, it calls for a punishment range of 5 to 99 years.  After the prosecution and defense attorney have their opportunity to consider the facts and legal issues, it might be very wise to place the offender in prison for 2 to 5 years, depending on the crime, and then ask that the restorative justice process be given the opportunity to take place.  After 2 to 5 years, a lot can happen.  People can grow up, wise up, admit to substance abuse issues, acknowledge right from wrong, humble themselves, and in many cases, they may have deep empathy and compassion for those that they have wronged.  Meanwhile, the victim may have finally developed the courage to forgive, acknowledge their own wrongful role, if any, in a given scenario, develop the will to heal and let go of past pain, and finally, move forward and live the best life possible. 

One way to look at restorative justice is the visual below...

  




Justice, in its noblest form, must promote healing and reduce human suffering.  Thus, the question above is not just appropriate, but it is also essential.  The interests of the victim and the offender are placed on the right and left, and the interest of the community is placed on the top.  Yet, it is only where those interests can, through reason and informed discussion, overlap that we will ever find justice. Failing to find that overlap and work within it almost invariably creates an adversarial perspective, leaving at least some, or possibly all of the interested parties permanently feeling marginalized or ignored, and feeling as if the badly needed healing will never come.

Parole Protests Are Hurting The Legitimacy of The Entire Parole System

I have been representing prisoners before the Texas Board of Pardons and Paroles since 2007.  One complaint I have heard many, many times from inmates and their families is that some of the very best behaved “model” inmates are repeatedly denied parole, while some of the “knuckleheads” seem to get paroled very quickly.  I have also witnessed this phenomenon myself on many occasions.

Obviously, this type of complaint by inmates and their families about perceived unfairness in the parole process is a generalization, and it often completely fails to account for the true nature of the crime, the inmate’s own past failures above and beyond the major failure for which he/she is incarcerated, among other things. These complaints also fail to account for the list of static and dynamic variables that go into a parole guideline score.

This concern of perceived unfairness, however, becomes much more valid when you compare inmates who committed similar crimes and who have similar guideline scores, and who both demonstrate a great deal of positive transformation as a result of the valuable lessons learned in the years following the criminal behavior.  In these “apples to apples” scenarios, it is completely arbitrary that one person makes parole, and the other does not, especially if the person denied is repeatedly denied.  And the greater the difference in the length of the term of incarceration ultimately required of two such similarly situated inmates, the more arbitrary and unreliable the parole system as a whole becomes. Victim protests are, in my opinion, a huge part of the reason for such arbitrary and unbalanced results.  It is my opinion that the extreme reverence presently given to parole protests undermines the legitimacy of the entire parole system.

I have blogged before that a victim protest likely equates to a denial of one’s parole, period, with little or no exception, period.  I must qualify my firmly held belief by openly admitting that I cannot prove that this is what is happening, and there is a very good reason I cannot. Namely, the Texas Board of Pardons and Paroles strictly adheres to its policy of never revealing the existence (or non existence) of a protest on any particular file, in any given offender’s parole review.

Before anybody starts thinking that I have no sympathy for crime victims, let me first say that I am a compassionate person by nature, and I am always looking for ways to bring peace and serenity into my life and the lives of those with whom I come into contact in my daily life.  I do not like conflict or unkind behavior, and I loathe unnecessary human suffering.  Therefore, I am naturally sympathetic and I have genuine empathy towards anyone who suffers.  Some victims of crime are forced to endure unspeakable suffering because of the extreme and completely outrageous nature of the criminal behavior inflicted upon the victim and his/her family.

When a crime occurs in which innocent people are victimized unnecessarily, we all lose. But, generally speaking,  nobody loses more than the victim and the victim’s family.  Just because I see suffering of inmates and their families on a regular basis, it does not mean I am oblivious to the victim’s suffering.  The most obvious example of such suffering occurs when a person is murdered.  Yet, there are many, many other crimes that are less extreme that, nonetheless, cause a large amount of temporary or permanent suffering.

When you really stop and think about it though, a parole vote should have little or nothing to do with whether a victim is protesting a prisoner’s release from prison.  The decision whether to parole a person is supposed to be objective, made by a qualified group of people who can objectively consider the relevant information.  Objectivity.  That’s what we, as a society expect from any governmental decision-making body.  In fact, jurors in every civil and criminal trial in the state of Texas are expressly instructed by the judge not to let bias, sympathy, or prejudice play any part in their deliberations in important matters such as guilt or innocence in a criminal case, or in determining the amount of damages to award a party that seeks money damages in a civil trial.  Yet, this objectivity is openly challenged at the courthouse by involving crime victims, which is quite common in this age of increasingly popular “victim’s rights” programs.  To allow victims of crime even more power by affording them future opportunities to negate the objectivity of the parole system makes the opinions and experience of parole officials seem completely irrelevant.

A protest by a person who still carries the anger and pain of a past crime is perhaps about the most subjective opinion one could possibly seek out concerning whether a particular inmate has a) been adequately punished for a given criminal act, and b) whether an inmate has been rehabilitated and demonstrates the requisite maturity and character to be trusted to re-enter society and live a crime free life.  In fact, most crime victims could care less about anything other than their own pain and their own desire to see the perceived wrongdoer punished. It stands to reason, therefore, that a crime victim is the least qualified person to be able to address whether an offender has been properly punished, and whether that same inmate has been rehabilitated.

If the entire justice system is premised on the notion that decisions must be made as objectively as possible, the first question we should all ask ourselves is whether the stated desire of a victim ought to play any role in the justice system.  Even if the answer to that question is “yes”, that we do, in fact, want to introduce the subjective will of crime victims into our society’s justice system, the second question that naturally follows is whether we want to place some reasonable limits on the will and of the victim.  If there is to be a limit on the will of the victim, at what point must we stop looking to the victim for guidance as to what to do with a person who committed a crime in the past?

The above question is extremely important.  Another way to state the question is this:

When do we move beyond subjectivity (sadness, anger, hatred, desire for revenge) and seek to remain objective about the dual purposes (punishment and rehabilitation) in every criminal justice system?

There are really only three possible answers to this question.

The first possible answer is that we should  seek a system where the law punishes criminal behavior itself, without regard to anyone’s personal opinions, least of all the victim, who is almost certainly biased, and understandably so.

The next possible answer is that we allow the subjective will of a crime victim to play a limited role, but we set up a system where that subjective role, while allowed, is still subservient to the more objective will of those whose job it is to be as fair and objective as possible.

The third possible answer is to the important question above is to set up a system where the objective decision making ability of judges, juries, and parole officials is pretty much disregarded, and the subjective will of crime victims is the basis for all important decisions. I’m afraid that the present way of handling crime and punishment in Texas is leaning more and more towards this third scenario.

Most crimes result in victims.  This inappropriate victimization is precisely why many criminal statutes are enacted in the first place. So, when a person is arrested and is suspected of having committed a crime, victim centered system dictates that we ought to go ask the crime victim what punishment, if any, ought to be imposed upon the person being charged with crime, without regard to anything else, and then keep asking the crime victim how he she feels into the future.

When an offender sits in prison, he or she is being punished.  However, while the punishment is underway, the long term goal is to always seek growth and rehabilitation, real positive change in the mindset of the offender.  Ultimately, we want to know that the offender has learned valuable lessons about life, about the terrible consequences of crime, and about the acceptable limits of human conduct, such that they will never commit crime after being released.  Having a system that uses the victim’s protest and ignores everything else, we rightfully have less trust and faith that the “system” is anything even resembling fair.

I doubt the general public shares my views about this topic.  Most focus on punishment, to the complete exclusion of rehabilitation.  Strangely, however, individuals always feel quite differently about the role of forgiveness and rehabilitation when it is their loved one sitting, suffering, in prison.

Perhaps a way of allowing the victim of crime to impact the prosecution and incarceration of an offender is to set limits.  For example, sentence a criminal, and then allow a victim’s input to be able to add up to 10% on to the term of incarceration.  Similarly, allow the victim to protest the offender’s initial parole eligibility date, but not any subsequent parole eligibility opportunities.  The Parole Board is quite capable of seeing a serious offense for what it is, and the inmate who wishes to make parole is still going to have to overcome plenty of challenges in order to make parole.  It just seems completely absurd to me that we would ever have a system wherein we keep the prison door locked for as long as a crime victim thinks it ought to stay locked.