Locked Down, Locked Out (18 page)

Another framework that steps outside the PIC mentality is transformative justice, which overlaps with restorative justice in some ways. It focuses on promoting healing for survivors, accountability for people who harm, and a collectively safer and more connected community. But—especially when it comes to
sexual and domestic violence—it also calls into question the concept of “restoration,” which can assume that there’s a good place in the past to return to. Transformative justice strongly emphasizes “transformation of the social conditions that perpetuate violence—systems of oppression and exploitation, domination, and state violence,” according to Generation FIVE, an advocacy organization dedicated to ending the sexual abuse of children through transformative means.
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When applied to a specific harm or conflict, the emphasis of transformative justice is often on long-term change-making, addressing behaviors and ways of occupying the world, as opposed to exacting a resolution to one incident. Transformative justice generally operates wholly separate from the state, while restorative justice sometimes works in tandem with police departments, serving as an “alternative to incarceration.” Grounded in principles of connection, both of these community-based practices are very different from the standard practices of a courtroom.

“Justice” for Victims and Families

Ricky Joseph Langley was charged with the capital murder of a six-year-old boy in Louisiana in 1994. Nine years later, in a retrial, the prosecutor working on the case was intent on seeking the death penalty. The victim’s mother, however, vehemently opposed the execution of the man who had killed her son. The death of this man would do nothing to allay her grief, she said, especially since it would be preceded by the anguish of another long murder trial—an impediment to healing. She pleaded with the lawyer, asking him not to pursue a sentence of death.

The prosecutor grew furious with her noncompliance. He “even blamed [the mother], in part, for the jury’s verdict of second-degree murder—a verdict that does not permit the death
penalty,” according to legal scholar and prosecutor Angela J. Davis (not to be confused with Angela Y. Davis, activist and author of
Are Prisons Obsolete
?), recounting the case in
Arbitrary Justice
. As the pursuit of capital punishment pushed forward, the boy’s mother expressed that the prosecutor had made her life even more painful in the wake of her son’s death.
⁷

In court, questions are focused on the people accused of doing harm: whether to punish them, and then how much to punish them. Victims and survivors—especially, Davis notes, poor people and people of color—are tossed to the sidelines, rendered powerless. Their wishes are rarely spotlighted in the courtroom except when they make juicy TV fodder—for instance, a high-profile murder case in which a victim’s family member announces that the defendant should “rot in jail” or die, in order to “see justice served.” It’s not just people who’ve done harm who are isolated by the prison-industrial complex. It’s victims, communities, and families, too.

In a journal entry she shares with me from 2005, when Kayla was heading to juvenile detention, Mom writes: “Now the courts are involved, and I stand before the judge and watch him not even glance at me let alone consult me. It is out of my hands. You can’t say a word, and if you do, you’re considered to be disrupting the court.”

A community-based justice approach ideally acknowledges the complex ways in which conflicts affect families, and engages them in the processes of justice and healing. Including the community also helps place an incident in the context of what
else
is going on—how the particular act in question fits with larger trends in the neighborhood, the town, the county, the world.

A Shifted Approach to Life

For Flathead County, Montana, a working-class, majority-Republican locale at the edge of Glacier National Park, it was numbers that prompted a turn toward restorative justice.
⁸
The county’s wakeup call was a 2009 University of Montana study of “juvenile offender status,” which awarded it the dubious honor of holding the highest youth recidivism rate in the state.
⁹

At the time, Flathead’s approach to juvenile justice involved spending loads of money removing kids from their homes and placing them in detention centers. This program of cutting kids off from their families and communities wasn’t doing the trick. “At-risk teens are in a really unique place in that they already feel disconnected from society because of their age/development status,” Kate Berry, who works with Flathead’s current restorative justice program, tells me. “This is only exacerbated by the fact that they have committed an offense that further alienates them from their communities.” If they’re incarcerated, they’re isolated even further.

Nowadays, in Flathead County,
all
victims of youth crime are engaged in a process that moves toward a “victim-offender” circle, if they so choose.
*
The town didn’t attempt to build a restorative justice program inside the police department (a not-uncommon
move in line with the “right on crime” approach, which can actually serve to bolster the prison-industrial complex by expanding the range of what constitutes policing). Instead, the probation department handed the reins to the Center for Restorative Youth Justice (CRYJ), a separate organization that holds circles, runs a “community accountability board” that meets with youth to discuss the impact of their behavior on their community, organizes a community service program, and provides spaces for accountability-oriented dialogue around drugs and alcohol.

It’s important to note that CRYJ can’t control who gets arrested and why. Police still exist in Flathead County, along with the profound problems embedded in that institution. It’s the juvenile probation department that calls CRYJ when a kid gets in trouble. Despite this inherent dissonance, the center strives to maintain a commitment to principles of transformation: It emphasizes forging new community bonds (it doesn’t keep to the mold of “restoring” old ones) and recognizing the larger issues of social injustice that shape kids’ motivations.

Once the program took hold, it took off. The county docked a 13 percent recidivism rate in 2011, in contrast with the state’s youth recidivism rate of 46 percent.
¹⁰
The numerical improvement is encouraging, but the folks I speak with in Flathead County agree that the most important “measurements” are the new relationships that are created: the strengthened community and the previously nonexistent bonds that were formed. Victims have responded positively as well. Bill Emerson, the victim of a residential break-in, says of the conference he and his wife had with the youth (“Just a kid!” he comments) who did it: “I can’t tell you how much going through the conference meant to us. Had we not, I fear we may have never really put that incident to rest.”

One CRYJ social worker shares with me a small story that illustrates that community strengthening: Recently, a youth stole and destroyed a commercial painter’s vehicle, which contained most of the equipment and supplies that were vital to the man’s business. The painter spoke to the youth, recounting the impact of the theft and destruction on his business, how his employees were unable to work and lost pay until he could buy a new vehicle. The painter’s wife then told how the incident occurred in late November, creating an instant host of financial woes and leaving them unable to buy Christmas gifts for their kids. The youth expressed deep remorse and agreed to pay restitution money, which he would earn. The painter and his wife then reached out further, telling the youth that he was a valued member of the community, and that if he stayed on track they would give him a job. In addition, they asked that the youth write them a monthly letter detailing his progress.

Diane Dwyer, CRYJ’s victim impact coordinator who leads the circle-based aspect of the program, said of the youth in this case: “He was so taken with their benevolence.... This adolescent had several other offenses before he did this. He had very little supervision at home and took pride in being an ‘offender’ till this happened.” So far, she says, the youth has moved forward with his monthly letters, developing a strong relationship with the victims, his future employers.

He took pride in being an “offender” until this happened
. This change in course, not only in action but also in mindset, is not deterrence. It’s not I-really-want-to-do-this-bad-thing-but-I-won’t-because-I’ll-get-arrested (which, of course, in a retribution-oriented system, is a less likely sentiment than I’m-going-to-do-this-bad-thing-and-try-not-to-get-caught). This is a shifted approach to life.

Several years ago in Flathead County, a fifteen-year-old kid crashed a car and killed a young woman in her twenties. The woman’s parents, although—or perhaps because—they were awash in grief, very much wanted to engage in a restorative process. This tragedy could have resulted in a stint in juvie, a “graduation” to adult prison, and, quite possibly, future harm. Instead, a circle was organized, including the driver and his friends, the deceased woman’s parents, the highway patrol officer at the scene, and passersby who stopped to assist after the accident.

No one went to jail. After an intensive series of circles in which the deceased woman’s parents described what they would need to begin healing, an accountability agreement was reached. As part of that agreement, the youth developed an informational pamphlet regarding the risks of teen driving and the consequences of carelessness on the road and presented it at area schools, along with the story of what he did. Instead of being siphoned off from his community and sent to prison and forgotten, the driver of that car became a spokesperson for road awareness and caution, striving to prevent others from making the dangerous choices he had made, inflicting the immense harm he had inflicted. Real justice isn’t
only
about preventing people from doing wrong. It’s about supporting them in doing right.

Decriminalizing Remorse

There’s an essential ingredient that sits at the heart of this different approach to justice: remorse. The role of remorse in court is often simply just that—a “role” that’s played by defendants, coached by their lawyers once they’re entering a guilty plea, in order to appeal to the judge or jury for a mitigated sentence, or to appeal to parole boards who may cruelly deny release based on a perceived “lack of remorse.” In criminal court, an apology
isn’t addressed to the victim, since the victim usually isn’t even present; it’s an offering to the judge, a form of self-defense.
¹¹
If a defendant were to reach across the aisle and ask the victim for an honest, repentance-oriented conversation, sans judge, chances are the courtroom would fly into chaos.

When I raise this topic with Father David Kelly, a longtime Chicago youth restorative justice leader who works with people trapped in the system, he speaks of the way the court system explicitly discourages and even punishes such emotion. “As far as expressing remorse, the criminal justice system says
dont
do it,” he tells me. “The whole system is designed to say, ‘Don’t admit anything. You have the right to remain silent. Plead the Fifth.’ Father Kelly describes the case of a kid he’s working with who’s currently in juvenile detention. In court, the kid was desperate to apologize to his victim, but his lawyer told him, “Don’t you dare!” Lo and behold, when the sentence came down, the judge scolded the kid for not being remorseful. “He was remorseful,” Father Kelly says, “but there was no mechanism for him to show that. He was supposed to be thinking, ‘I’m fighting this case they’ve got against
me
. Because “true remorse” can’t be expressed, because the legal process is about people defending themselves against the state, there’s not much room for accountability to other people.

Carlos Rodriguez, a Chicago-based addiction counselor who works with kids and adults embroiled in the criminal justice system, specializes in community-based and nonadversarial justice. Carlos runs wilderness trips that mesh with these techniques, aiming for 24/7 immersion in healthy, interdependence-based existence. He works to guide people, he says, toward the Mayan principle of
Lak’ech:
“I am the other you, and you are the other me.” When we meet for coffee, he tells me how, since these practices are
so
different from the dominant model, it often takes a
mental leap to get to a place where real, heartfelt apologies are OK. He describes how in a circle it’s necessary to get “out of your head and into your heart,” where empathy is born.

“That
Is Justice!”

Even the most genuine empathy can’t erase poverty, racism, and other structural factors that often drive harm. However, Father Kelly points out that empowering people to speak to their daily struggles holds potential for beginning to confront the oppressions that saturate and fuel those struggles. He tells of one circle in which a victim became a mentor to the young man who had burglarized his house. The victim talked passionately about how he’d lived in the house since childhood, and how, in the wake of the break-in, that haven had turned into a space of fear, unsteadiness, and violation for him, his wife, and his two small children. The young man responded with visible sympathy. Then, bolstered by his mother sitting next to him, he told of his past—the traumas he’d endured, the dead weight of poverty that had dragged him backward at every turn.

“When the guy who did the harm was telling his story, the victim felt like, ‘Wait a second, this is just like me,’” Father Kelly recalls. “There was a real connectedness.” When the group, which included several other members of the community, asked the victim what he needed to help address the harm, he could barely speak—he was so moved by the young man’s story. At first, he said he didn’t need anything. But then he paused. “Hold on,” he said. “There is something I need. This kid has to go back to school.”