DELANY DEAN, JD, PhD

delanydean.com

KC Mindfulness

crimlawdoc@gmail.com

Diagnosis in the Courtroom: I just got my deposition taken, in connection with an assault case that is going to trial next week. I am serving as a forensic psychologist, and expert witness for the defense. Getting deposed usually gives me the chance to be exposed (again) to the persistent misconceptions that many people (and, especially, prosecutors) harbor about “mental illness.” So I will make a list of the top several of these:

My (current) Top 4 Misconceptions about Psychiatric Disorders:

1. People with a mental disorder always behave in a way that appears obviously “crazy” to any outside observer. Prosecutors like this one because they can always point out instances in which a person with a psychiatric diagnosis can be demonstrated to have done something very ordinary and apparently rational, such as getting up in the morning, and putting on clothes. They like to try to use these little examples to undermine a psychologist or psychiatrist who diagnoses the person with (for example) major depressive disorder, or bipolar disorder, or delusional disorder. The truth is, of course, that psychiatric diagnoses come with various symptoms, at various levels of severity, and causing various amounts and types of disability. Most people with any of these (severe) disorders are NOT totally disabled, even throughout the entire course of the active phase(s) of their disorders.
2. People with a mental disorder are unable to have any rational thoughts. This is related to Misconception #1, above. Let’s say that a person with schizophrenia truly believes that his wife has become the devil, and is about to kill him; under the influence of this belief, he shoots and kills her, and then runs away and hides. Prosecutors (and a lot of psychiatrists who work for the government) will (sometimes triumphantly) label the running-away-and-hiding behavior as “consciousness of guilt,” and “understanding that what he did was wrong.” Not necessarily. It is (at least) equally likely that the person believes that he did the right thing, out of necessity, but is afraid that others will not understand, and will blame him.
3. People commit crimes for reasons that are either totally “sane,” or totally “insane.” Human behavior is much more complex than that; the presence of a serious mental disorder may very well have a significant impact on a person’s thinking, emotional functioning, and behavior. But that doesn’t mean that there may not be other factors involved in the behavior, as well, and these factors may not seem all that “insane.” The psychiatric symptoms may easily exist right alongside some capacity for rational decision-making, as well as normal motivational factors, and all of these factors (along with various unpredictable stimuli from the environment) will combine, producing behavior that might differ tremendously from the behavior that might be anticipated in that person if the psychiatric symptoms were not present, and part of the mix.
4. Psychiatric diagnosis is an exact science. Not so. The diagnostic manual (DSM-IV-TR) offers an illusory appearance of exactitude and precision. The real situation is much, much murkier. Although some conditions are easy to diagnose, and easy to distinguish from other conditions, there are many other conditions and diagnoses about which reasonable and well-trained doctors will disagree; and there are many conditions/diagnoses that are not at all easily distinguishable, one from another. Finally, various conditions have a course that changes in its presentation over time, making it difficult, for example, to distinguish between Paranoid Personality Disorder, and Delusional Disorder (Persecutory Type).

So: what I am often trying to convey to a jury (and trying to explain to prosecutors, although they don’t want to hear it) is this: a person may very well commit a criminal offense due to the influence of a serious psychiatric disorder, while nevertheless appearing relatively “normal,” to the untrained eye. In other words: In order to be legally found not mentally responsible for his behavior (legally “insane”), he need not be raving about nonsense all the time, running around naked, incapable of rational conversation, seeing things that are not real, or totally out of control. Usually, it is not that way, at all.

THE NANCY GRACE SCHOOL OF PROSECUTORIAL DEMEANOR

I gave expert testimony in a criminal case on Wednesday morning. In that case, I was of the opinion that the defendant, while possibly exaggerating some of his symptoms, and possibly even malingering, was also displaying some behavioral and cognitive symptoms that were very typical of genuine paranoia. This is the kind of case that is pretty complex and difficult to sort out; even among experienced and well-qualified forensic psychologists and psychiatrists, you are likely to see differing opinions. Everyone who does this work is aware of that (psychiatric diagnosis is far from a precision science). At any rate, the prosecutor on my case was one of those insufferable young women (so often I see this in female prosecutors, more so than in the guys, for some reason) who are influenced by the Nancy Grace School of Prosecutorial Demeanor. They are sarcastic and rude to witnesses, they take it all VERY personally, and, accordingly, they are not only unpleasant, but ineffective. At one time I was in the business of teaching young prosecutors how to work effectively in the courtroom; this young woman would have gotten, at best, a C- from me on that cross examination. Maybe someday someone will explain it to her; or, maybe she will just outgrow it. I have to admit, though it pains me to say so, that I had to outgrow some of that, myself. Eventually I learned that nothing is gained by taking a case (or anything that happens during the course of a trial) personally.

PRISONS, AND THE SPIT MASK



There’s a town in north central Missouri (Cameron) in which there is a very strange sight: two brand-new prisons, sitting side-by-side. Over the past ten years or so, the prison industry has enjoyed a boom, based on the crime-prevention-lock-’em-up hysteria that U.S. culture has succumbed to. We have had the “war on drugs” (remember that? it was just before the “war on terror”), and the “three strikes” stuff, and the “life-without-parole” and “mandatory minimums” stuff. It’s been tremendously exhilarating for state legislatures, and for contractors (see this article: Economic Impact of Our Prison Population). And the result is that lots of prisons have been built in little towns, throughout rural Missouri, and they all look alike. In Cameron, MO, there are two sitting right next to each other. One has blue metal roofs, the other one has green metal roofs. Weird.

I’ve been to the Cameron prisons, several times… today I went to the green-roof one, to see a guy. He was wearing a new kind of headgear, known as the “spit mask.” Guys who are known to spit on correction officers (also known as “CO’s,” or guards) now are not only put in “the hole” (where they have virtually no human contact, and see no daylight, ever), but when they are taken out, they are shackled, handcuffed, wrists chained to their waists, and they have to wear this thing. It goes around the guy’s entire head. The bottom half is a flexible white shield, going up to the bottom of his nostrils; the upper half is mesh, like a mosquito net, and it’s all gathered together at the top of the head into a little knot. It is hard to describe. You can’t see the guy’s mouth, at all (so it is more difficult to understand his speech). I actually began drawing it, while I was talking to the prisoner today, and he noticed what I was doing. He looked over at my legal pad, and said: “You’re drawing! You’re doodling!”. I was reluctant to tell him that I was making a sketch of what he looked like in the spit mask, so that I could describe it in words, later, if I had to write a report. I didn’t want him to feel that he was a spectacle. I told him that I was, in fact, just “doodling,” to keep my fountain pen from getting dry. And then I engaged in some convincing doodling, to prove my point…

THE ROLLINS TRIAL, PART 1: MENTAL ILLNESS (DOES ANYBODY REALLY CARE?)

Later this week I will be testifying at the trial of a man who, it is charged, got out of his car after being stopped by a highway patrolman, and shot the trooper numerous times with a handgun. As is often the case, it is difficult to be working on the defense side in this case, because it is impossible not to feel great sympathy for the trooper, who was terribly injured (and terrified) by the defendant’s actions. (Fortunately, he not only survived, but recovered.) Throughout my adult life, working in the criminal justice system, I have lived with the discomfort of the need to “take sides” in an adversary system. Those who work on the prosecution side are not immune from the sense that, sometimes, they are causing harm; and, on the defense side, it can be difficult to explain, to family, friends (and even to yourself, sometimes): “How can you defend that guy?” There’s a good article in the NYT about a lawyer in New York City who finds himself confronted with that question right now, in the defense of the Sean Bell homicide case. Here’s an excerpt:

“How could Mr. Ricco, a prominent black lawyer and lifetime resident of Harlem, represent an officer responsible for the death of an unarmed black man? Even if the officer is himself black? … ‘I got phone calls from many people who tried to discourage me from getting involved in the case. I was very disturbed by some of the views that were expressed. “You’re seen as a hero in our community. How can you represent them?” …’The answer to it is very simple,’ he said. ‘I thought about many of the young black men who were prosecuted and executed in small towns in the old South. Excellent white lawyers living in those towns were intimidated from getting involved with those cases. Would I fold to the community’s sense of outrage? I hope to think if I was a lawyer in those small towns, I would have stood up.’”

The point, I think, is that nothing is ever as simple as it seems. We have an adversary system in which we have to take sides, and when we do so, we find that there is always something to be said about the merits and perspectives of each “side” of any situation. It may be (for example) that a man who engages in despicable and destructive behavior was mentally ill, and unable to really understand what he was doing; and it may be that there are alternatives other than “put-him-away-forever” that would serve the ends of justice (whatever that may be!) and community safety.

THE ROLLINS TRIAL, PART 2: Being “In Trial”

If you are a lawyer, there is a state of being, during jury trials, when you (or your office assistant, or partner) will tell anyone who tries to contact you that you are “in trial.” It means, among other things, that all the rest of life is suspended until the trial is done; that you will get back to whomever, and whatever, whenever the jury comes back. It really is a different state of being, unlike any other that I have known in my varied life endeavors. In just about any trial, you will experience: intensity, focus, absorption, boredom, drama, triumphs, defeats, tears, rage, joy, brilliant tactics, dumb mistakes, and many contradictions (many truths, and frequent non-truths, as well).

Yesterday I spent the whole day at a trial. Part of that time I was out in the hallway, sometimes sitting on a bench, reading case documents, checking my email, or staring off into space; sometimes, out in the hallway, I stood talking with the defense attorneys, discussing the trial and making comments and observations about various of the other people involved. One guy, for example, was wearing a plaid jacket and a striped shirt. The patterns clashed in a way that was difficult to look at, but also hard to ignore. He was somehow involved in the prosecution case, but he never actually testified, and I never did figure out what his role was. Much of the time, I was in the courtroom, either waiting to testify, or testifying, or watching somebody else on the stand, testifying. Inside the courtroom, in the back where the spectators sit, there were two opposing camps set up. It was a bit like a wedding in which the bride’s people sit on one side, and the groom’s people sit on the other. On one side of this courtroom, the MSHP trooper who was the victim of the shooting incident sat up front, in uniform, with a woman who I guess was his wife. Along with them, on that side, there were a bunch of guys who were not in uniform, but who were obviously troopers, friends of the victim (Trooper Brashear). On the other side of the courtroom were family and friends of Tommy Rollins, the defendant. There was no obvious hostility that I saw between these two groups, but there was certainly no mingling between them, no communication at all, that I could see.

It was my opinion, as a forensic psychologist who examined Tommy Rollins several times, that Tommy suffered from psychiatric disorders that signifiicantly contributed to his terribly irrational behavior on the night that he shot Trooper Brashear. But Dr. Kline, another forensic psychologist, saw it differently. He testified that, in his opinion, although Tommy did have psychiatric disorders, those disorders did not play any role in his thinking, his decision-making, or his actions. Such a disagreement is (unfortunately) not unusual. It is the nature of forensic psychology is that not all qualified experts who examine a criminal defendant will come to the same conclusion about whether or not he had a mental disorder when he did whatever awful thing that he did… nor as to whether any disorder that he did have caused or contributed to his behavior. It’s the nature of the beast, and such was the case in this trial. Dr. Kline and I saw the same guy, we talked to him, we read all of his psychiatric records, and every other piece of paper we could find about him… but we disagreed. Perhaps one factor is that the prosecution psychologist is paid by the State, and I was hired and paid by the defense. Forensic psychologists and psychiatrists try very hard (I think we all do; certainly I do) not to let the source of our payment influence our opinions… but there may sometimes be unconscious factors at work that we cannot control. I do know that in well over half of the cases in which I do evaluations for defense lawyers, my findings are not helpful to the defense; so I can be relatively confident that my decision-making is not dictated by financial considerations.

After Dr. Kline and I testified, the trial testimony was pretty much all wrapped up, as far as I could see. I expect that the jury will hear final arguments and instructions, and begin deliberating, today. As I testified, I tried to communicate directly to the jurors; some of them made eye contact with me, and appeared to be listening to what I had to say with some degree of interest and engagement; a few others seemed to be avoiding eye contact with me. I have no idea what, if anything, that means; nobody can ever predict what a jury will do.

I know that today Tommy Rollins and his family, and Trooper Brashear and his family, are waiting, and hoping for entirely different outcomes. And each group truly believes that the outcome they hope for represents True Justice. One side will probably end up being terribly disappointed, and one side will probably find some satisfaction, or possibly even joy, in the jury’s verdict. I wish that somehow our criminal justice system were not structured in such a way that there is always this deep and bitter divide between the victim and the defendant; I wish that there were some way to integrate an element of reconciliation into the process. The movement in the direction of “restorative justice” (see my previous posts here) has created a few inroads in that direction; but it represents only a very small beginning.

THE ROLLINS TRIAL: PART 3

Yesterday the jury found Tommy Rollins guilty on all counts, for shooting a state trooper (my previous posts about this trial are here and here ). I could find no mention of the verdict in today’s Kansas City Star newspaper (and I find that fairly odd), but local TV stations covered the trial, and here’s a link to one small story from a TV station; it includes a short video of one of Tommy’s family members who collapsed in grief when the verdict was announced; a deputy is seen on the video, literally dragging her on the floor, across the hallway, away from the courtroom. I couldn’t see her face in the video, but I believe that woman was Tommy’s mother. I’ve spent some time with her; she is a lovely woman. She spent most of the five days of the trial reading her Bible, and praying. The whole thing is very sad.

Part of the sadness is that our criminal justice system is built in such a way that crime victims, like Trooper Brashear, are encouraged to see the whole process of “justice” as being about vengeance and retribution. The way that most crime victims see it, the more punishment, the better; and prosecutors usually play that game right along with the crime victims, all too well. For the trial lawyers, it’s a lot like a competitive sport, actually. [I once was a prosecutor, myself, and I participated in the system vigorously… until I began to have a change of heart. But that’s another story, for another time.]

Another part of the sadness is that Tommy suffers from serious and chronic mental illnesses, and his symptoms played a major role in creating the mental state in which he felt that his only option was to strike back at the people who, he believed, had maliciously destroyed his life. He had even been found by the Court to be incompetent to proceed to trial, at one point, because of his mental illnesses. After that finding, Tommy spent more than a year at Fulton State Hospital, getting treatment for his depression and his psychotic symptoms. His doctors at that hospital were in agreement, of course, that Tommy was experiencing depression and delusional beliefs, and they provided him with appropriate treatment. Gradually, he improved. And so his case was returned to the trial docket. Ultimately, after hearing a lot of evidence, and a lot of argument, and after deliberating for four hours, the jury reached the conclusion that I was fairly sure they would decide on. “Guilty,” they said (never mind the mental illness). This is what typically happens in a criminal case in which the insanity defense is offered.

There’s an article about the insanity defense, here. The statistic usually cited is that the insanity defense is used in less than 1% of felony cases, and is “seldom successful.” Lawyers agree that juries are generally unimpressed by arguments that a person’s criminal actions were caused or influenced by the existence of a serious mental illness; essentially, I think, they tend to take a common-sense and conservative attitude. They generally seem to be thinking something along these lines: “Well, if he has the kind of craziness that makes him commit crimes, then I’d rather have him in prison being crazy, than out on the street, being crazy.” So, inevitably, Tommy will go to prison, and probably for a very long time.

We need a better system for dealing with mental illness! Community mental health facilities are overcrowded, understaffed, and overwhelmed. And, within the criminal justice system, in particular, our treatment of persons with mental illness is woefully, shamefully inadequate. There is simply no money for it; and state legislators have zero interest in taking on the thankless job of trying to create and fund a system in which people like Tommy Rollins can get decent treatment while they are imprisoned for crimes they committed while mentally ill. Nobody wants to be seen as a coddler of criminals… Nobody wants to look into they eyes of Tommy Rollins’ mother and say: “I care about what happens to your son.”

THE FERGUSON CASE: PART 1

I’m off to give a deposition this morning in an old case that arose out of a homicide in Columbia, MO. One of the editors of the Columbia Tribune was murdered outside the newspaper building, late one night. Nobody was arrested, and there were no good suspects, for a long time. Then, 2-3 years later, after a newspaper article was published about the old unsolved case, one young man began to tell people that he suddenly remembered that he and a friend had committed the murder. Eventually, he pled guilty and his “friend” was put on trial. A major issue in the “friend’s” trial was the reliability (or not) of the co-defendant’s memory about the incident. Elizabeth Loftus, the big-name memory expert, testified, which made the trial even more high-profile than it already was. The jury found the “friend” guilty. I did some consulting on the case, and now there are post-conviction matters being litigated, so the lawyers have asked me to come in and testify about various aspects of the case.

Here’s a link to an article about the case; and another article.


THE FERGUSON CASE: PART 2

Here are three of the interesting, and overlapping, issues raised in the Ferguson case:

  • False memories (deliberately implanted, negligently implanted, or self-implanted)
  • “Repressed” memories, subsequently “recovered”
  • Motivated forgetting

Elizabeth Loftus convincingly demonstrated that it was possible (in a laboratory setting) to deliberately implant a false memory in a research subject. This is generally done by using a family member or trusted other person as a confederate; the confederate uses suggestion and persuasion to induce the subject to become convinced that a non-existent event occurred. Following the procedure, the subject will have the strong subjective sense that s/he remembers an event that actually occurred, even though no such thing ever happened. The prototype situation involves a parent or older sibling “reminding” the subject about a time when s/he was “lost in the mall,” and was helped back to family members by a friendly stranger. The “reminding” is done by telling the story, with ample fabricated details, along with the repeated suggestion: “Don’t you remember when this happened?” When this procedure is followed, the subject will (at least sometimes) gradually begin to say, and believe, “Oh yes, I do remember that!”

Here’s a link to more information about this.

The issue of implanted false memories became very significant back in the 1980’s and 1990’s, when there was a near-epidemic of reports by psychotherapy patients that they had suddenly remembered that they had been subjected to horrific abuse during their childhoods, usually by their fathers. It was not always true that these abusive acts had actually taken place, and family members (especially the fathers) were horrified. It became clear that some psychotherapists were unwittingly providing suggestions to their clients that certain symptoms (relationship problems, anxiety, etc.) could be attributed to childhood abuse (especially incest), and that memories of such abuse were frequently “repressed.” The suggestion was also made that the best way to alleviate the presenting symptoms was to “recover” the “repressed” memories of the trauma, and talk about, or “work through” the memories.

During that period of time, I spent a few years working on inpatient psychiatric facilities, where I routinely observed what appeared clearly to be the production of false memories. I worked on units that specialized in the treatment of persons who reported that they had been subjected to sexual traumas. This was the heyday of the “Satanic Ritual Abuse” scare, about which much has been written. What I observed was that patients who heard each other’s stories of “recovered memories” of horrific abuse within satanic cults (and the chief satanists were usually their own parents) very often, and very quickly, recovered similar “memories” of similar events. This process was going on all over the United States, especially in group therapy settings (outpatient and inpatient). The atmosphere on these hospital units was highly suggestive, and the social milieu created by staff and patients obviously contributed to the creation of these “memories.” I have written about his in an earlier blog entry (see the page on “Psychology,” under “Memory”).

All of these issues became prominent in the Ferguson trial. Mr. Erickson, the co-defendant who said that he suddenly remembered participating, two years earlier, in a homicide with Mr. Ferguson, entered a plea of guilty and testified against Mr. Ferguson. Mr. Ferguson was convicted, largely (if not entirely) because of Mr. Erickson’s testimony. The question becomes: was Mr. Erickson’s testimony reliable? How could a person “forget” and then, two years later, “remember” participating in a murder? One theory that was mentioned was that Mr. Erickson read a newspaper account about the murder, then had a dream in which he and Mr. Ferguson committed the murder; and then, when he woke up, Mr. Erickson failed to realize that his dream was just a dream. And, in effect, he created a false memory within himself (this is what I am calling a self-induced false memory). Here is a newspaper article outlining the theory that Mr. Ferguson’s lawyers are now using to attack Erickson’s testimony.

I don’t know of any research that would indicate that people can self-induce false memories, absent some kind of suggestive or coercive atmosphere. It would be difficult to understand why a person would engage in a mental process within which he would convince himself that he had done something terrible (again, unless some kind of motivation is supplied, such as strong coercion or suggestion). [I note that Ferguson’s lawyers, according the article linked above, mention the possibility of obsessive-compulsive disorder (OCD); I don’t know of any evidence that the presence of symptoms of OCD would make a significant difference in this type of scenario.]

“Repression” and “Motivated Forgetting”: A competing theory as to how this scenario might come about would be the much more frequent phenomenon of motivated forgetting. This concept is related to the term “repression,” popularized by Freud and his followers. The difference would be that “repression” was usually though to be an automatic mental operation caused by an overwhelmingly traumatic event; an event of motivated forgetting, on the other hand, would imply that some degree of consciousness and effort are involved, either a failure, or refusal to think about the event. One person who described engaging in this process expressed it this way: “I just didn’t want to go there.” Or, as Scarlet O’Hara famously said at the end of Gone With the Wind: “I’m just not going to think about that. I’ll think about it tomorrow. Tomorrow is another day.”

Memory distortions are, of course, notoriously common, and factors such as motivation and suggestion play a huge role in the way we remember, and the way we forget. Here is a link that provides some of the basics of the psychology of memory and memory failure.


SEX OFFENDERS: THE NEW LEPERS

For many centuries, and in fact up until the 20th century, people with leprosy, or “lepers,” were among the most despised of all human beings. They were feared, hated, and cast out from the company of the unafflicted. Their disease left them disfigured, and so their appearance was sometimes horrifying (loss of facial features, for example); and the disease was thought (incorrectly) to be highly contagious. These factors fed the revulsion and the exclusion. All the more remarkable, then, are the stories in the Christian scriptures that depict Jesus treating lepers (and the mentally ill, who also were despised) with compassion. It is hard for us to understand how astonishing and upsetting it must have been for others to have seen Jesus violating the taboo against contact or communication with lepers! But, maybe, we can understand if we substitute the term “sex offender” for “leper.”

Sex offenders are the lepers of today’s society in the United States. A typical prison sentence for a sex offender today is on a par with typical sentences for homicides. Indeed, it appears that most people today consider sex offenders to be worse than murderers. Many states not only impose extremely long prison sentences, but also engage in “civil commitment” of sex offenders after they complete their sentences. These civil commitment procedures are highly draconian. They are ostensibly set up for the benign purpose of providing “treatment” for these offenders for the protection of the public… but in truth, the “treatment” provided is rarely, if ever, of reasonably adequate quality. The “treatment,” which goes on indefinitely, for years if not decades, is in actuality a ruse to justify preventive detention. Imagine, if you will, a society in which those who have been convicted of several burglaries, and who have completed their prison sentences, are then placed in “treatment centers” in order to cure them of their propensity to commit burglaries?

But let us turn to those who are not in prison, and who are not in “treatment centers.” They are, of course, required to register themselves with local law enforcement authorities (let us recall that there is no registration required for murderers or robbers or burglars or bad check writers); web sites give easy access for the public to their identities and home addresses. Home addresses? What about that? Where do they live? Well, unlike murderers and other convicted felons, sex offenders face restrictions as to how far their residences must be from schools, churches, and so forth. As it happens, of course, schools and churches are near residential areas; thus it turns out that these restrictions are so broad that, in many locales, there is practically no residential area in which a sex offender may legally reside! These restrictions perform like an old-fashioned (and unconstitutional) Act of Banishment. And one result of this absurdity is the story we see about the sex offenders in Florida who are ORDERED by local law enforcement authorities to LIVE UNDER A BRIDGE.

All of this is taking in place in part because of the myth of high recidivism rates among sex offenders. Most of the general public have come to believe that all sex offenders have a voracious appetite for their crimes, and cannot control themselves. Not only is this unproven, but it is contradicted by the actual statistics that have been repeatedly analyzed over the past several years. Only a very small percentage of sex offenders repeat their offenses at high rates after imprisonment. One overall estimate of recidivism rates that we frequently see repeated in the literature is 20%, and this overall estimate takes into consideration those who tend to be higher-risk individuals. Cognitive-behavioral treatment, including relapse prevention, offered on an outpatient basis, is treatment of choice for the vast majority of those who are diagnosed with pedophilia. The work of Alan Marlatt, an expert in relapse prevention for addictions, indicates that the addition of mindfulness training may enhance this type of treatment.

Maybe we should re-think our stance toward today’s lepers. We cannot reasonably expect that banishment and indefinite confinements will cause sex offenders to be less likely to commit another offense. The costs of these “treatment centers” are outrageous, and rising, and someday those confined therein will be released. Persons who are treated as if they are monsters have little reason to engage in pro-social behavior. I believe we are going down the wrong path, and that this path will only make matters worse.


RESTORATIVE JUSTICE

Cherie Booth, a judge (and the wife of the British Prime Minister, Tony Blair) gave a talk for the BBC about Restorative Justice. Here are excerpts:

“I’ve been sitting as a part time judge for ten years now and for me the most difficult part of the process is the sentencing. The defendant faces me from the dock while I explain to him (and it is usually a him) why he’s going to jail. He may listen carefully but I often wonder whether he feels any remorse for his crime or has any idea of the effect he’s had upon his victims. This impression has been reinforced when I’ve visited prisons and spoken to inmates. It seems that neither the court process nor the prison experience is
helping them confront their behaviour or its consequences.

“And, of course, we must never forget the victims of the crime. Too often they sit in the public gallery – feeling marginal to the case, even bemused by what’s happening. They’re often denied the opportunity to confront the defendant directly with what he’s done, nor given the chance, where he’s genuinely sorry, to receive a personal apology.
Britain’s criminal justice system, of course, has been shaped by its Judaeo-Christian tradition. Often this tradition has been seen as punitive, advocating a retributive model of justice in which an angry God – or state – takes revenge on the offender for his crimes.

“But there are seeds in the Bible of a very different approach – an approach known as restorative justice which has been pioneered in countries like New Zealand and Australia. It’s now gaining ground in the UK, where it’s increasingly used in youth justice as an alternative to the courts and in the adult justice system as an addition to the court process.

“The approach of restorative justice is to see the offending behaviour not just as a crime but as a breach of a relationship; the relationship we all have as individuals with others in our communities. It emphasises repairing the harm caused by anti-social or criminal behaviour, holding offenders to account before their victims and often resulting in them making some kind of reparation.

“In the Biblical story of Zacchaeus, the offender’s immediate impulse was to make some reparation to his victims, paying them four times the amount he’d stolen from them. And the idea of reparation is a key element in the Restorative Justice process. However, the most effective form of reparation is usually, simply, a genuine apology. It’s the single most important thing a victim values.

“Some, I know, will say it makes for a nice ending to a Bible story, but isn’t it just plain naïve to suggest that the principles of restorative justice can work for 21st century Britain? The evidence is that they can. Not with everyone, of course, but they can work even with those who at first sight might appear hardened, serial criminals, those who might be branded no-hopers. In fact, evidence from the recent Sherman Report suggests that the restorative justice approach can be most effective in reducing re-offending where the offenders have committed serious, personal and violent crimes.”


RESTORATIVE JUSTICE: A PROPOSED APPLICATION ON A CATHOLIC UNIVERSITY CAMPUS?

Student codes of conduct: how do we respond when students go a bit (or a lot) off the rails?


Avila University is a Catholic university, founded and sponsored by the Sisters of St. Joseph (CSJ). At the close of Vatican 2, the Sisters of St. Joseph returned to their roots and developed a “consensus statement” that reflected their understanding of their calling and charism. A portion of that statement follows:

“The Sister of Saint Joseph moves always towards profound love of God and love of neighbor without distinction, from whom she does not separate herself and for whom, in the following of Christ, she works in order to achieve unity of neighbor with neighbor and neighbor with God.”

What if we added certain elements to our disciplinary process, such as non-adversarial encounters between individuals who are harmed by student misconduct, and the students accused of the misconduct? Many have found that encounters of this sort can be healing for all participants. We could employ other elements as well, such as greater use of community service requirements for those adjudged to have committed violations, and restitution (of various sorts) required to be made to those who have been harmed.

In our current system, victims of offenses are treated primarily as information-givers, with little attention being paid to making them whole; and offenders are treated as persons who should be punished, or at least warned, with little attention being paid to restoring them to full and harmonious membership in the community. Principles and practices of Restorative Justice may be helpful in making sure that both victims and offenders are afforded full opportunity to be integrated, or re-integrated, into the community.

Jesus taught and modeled trust in God and God’s unconditional love for us all. This means that God’s love for us is not, and our love for each other should not be, conditional on “good behavior.” The story of the Prodigal makes this very clear for us. Those within our midst who transgress are not, for that reason, to be banished from our midst, but in every way possible to be included and re-integrated into the community. Principles and practices of Restorative Justice appear to be highly consistent with the Consensus Statement of the Sisters of St. Joseph.

RESTORATIVE JUSTICE: CAVEATS AND LIMITATIONS

Recently, I was talking with a colleague about restorative justice practices. She is a strong proponent of “RJ,” as it is known. I am supportive of the concepts, and in particular of bringing some of the practices into our Avila University community’s student disciplinary process (see above). But I have lingering doubts about its applicability in the adult criminal justice system. Some of the practices advocated by RJ proponents have, in fact, been around at least since 1977, when I first began practicing law as a prosecuting attorney (in cases where criminal defendants were placed on probation, they were then, in appropriate cases, being ordered to pay restitution to crime victims, and sometimes to perform “community service”). Since then, “victim impact statements” have become routine at sentencing hearings. In my view, none of these three practices have been terribly successful.

As to restitution: bottom line is, it rarely gets paid. Most criminal defendants just are not very financially well-off, financially responsible, or stable in employment. And, also not surprisingly, they tend to evade the court’s order. The court and its personnel, in turn, spend a lot of time and energy (and this equals money) trying to compel the defendant to comply, and threatening him. Meanwhile, the victims, whose hopes have been raised by the fact that restitution has been ordered, become disappointed, if not increasingly embittered.

As to community service: who really wants these guys suddenly thrust upon them in the workplace, needing to be told what to do, how to do it, and needing to be supervised? Answer: really, nobody wants this. It’s a nice idea in theory, but in order to really make it work, somebody would have to put in a lot of time (and this equals money) to create and implement organized programs to place people into appropriate “service” slots, and supervise them.

Finally, as to “victim impact statements”: since I have sat through hundreds, if not thousands, of sentencings, I have listened to many, many courtroom hearings in which crime victims, and their families and friends, have tearfully, wrenchingly, and sometimes furiously made lengthy statements (often diatribes) to the court and to the defendant. It can be quite excruciating. And I am not convinced that it is, in many cases, of benefit either to the victim(s) (and company) or to the defendant. The problem is, as I see it, in the nature of the criminal justice system, which is that it is an adversary process. Each side is compelled to exaggerate its stance, in order to maximize its effectiveness and its chances of prevailing in what amounts to a battle, in each criminal case. The victims are treated by the prosecutor’s office (especially by those who serve as “victim advocates”) as if they were not only perfectly innocent (which, frankly, is more rare than you might think), but also irreparably damaged, if not totally ruined (short of murder, this is rare, too). Correspondingly, the defendants are made into monsters (again: rare). The defense side, for its part, portrays the defendant as a misguided soul, probably himself the victim of abuse and poverty, who made a bad mistake, and is sorry (maybe, maybe not!). But, at the same time, the defense dare not suggest that the victims might have in any way had contributed to their own unfortunate situation, even if they did (as is more often the case, than you might think). All in all, we often end up with a spectacle, in which the victim (and family and friends) are urged to really let it rip, and they rise to the occasion. And, because it can be so overblown, with the parties made into caricatures of Victims and Perpetrators, it can become trivialized and ineffective. In other words, no reconciliation or genuine healing can occur, because no real communication takes place.

Contrast this with some of the other practices, which take place much less often in adult criminal cases. In juvenile court, where the process is not so adversarial in nature, practices that are more inclusive (e.g., “circles,” and pre-adjudication conferences in which all parties participate) appear very promising. Meetings between victims and criminal defendants, when all parties are motivated and properly prepared, can be very helpful (these take place after the defendant has been convicted and sentenced). And I believe that we can bring these principles and practices to college and university disciplinary processes with good results, as well (in part because our systems are not committed to an adversarial model).

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