Restorative Justice Restores Power to Communities   

Tikkun Magazine, September/October 2009

Restorative Justice Restores Power to Communities

by Ronnie Earle

The longtime district attorney of Austin, Texas, reflects on Sunny Schwartz's book and shares his own experience and philosophy of restorative justice.

 

"Dreams from the Monster Factory"

In the prologue to her tour de force, "Dreams from the Monster Factory," Sunny Schwartz makes a confession that is quintessentially American and in tune with the changed times in which we now seem to be living. She says, "I root for underdogs." Even though her book is about jails and those who populate them, the underdogs she roots for are all of us.

That's because we are all victims of the way we deal with crime. We pay too much for protection, and what we get in return is more danger.

It takes the courage of the mythic hero's journey to look inside yourself, pick up what you see, and deal with it in a way that redeems yourself and others. In her book, Schwartz performs that ritual for all of us as she looks inside the collective Shadow that is our penal system. Even though she writes of the San Francisco County Jail, the lessons she learns and teaches are universal.

The term "monster factory" is chillingly descriptive of the reality of the places we send those who break our laws. Few, if any, come out better than they went in. How could they? We send them, in the case of prison systems in most states, hundreds of miles away from home and family to a community of criminals from whom they learn how to be better at breaking the laws that the rest of us live by.

For those to whom law school often seemed distant from the real world that waited for us after class, Schwartz's revelation that she "felt more comfortable in the jail" than in law school classes rings familiar. The success of her work in the jail probably owes more to her gift of empathy than anything else. In the roiling mass of alienated humanity that is a jail, she had, she says, "seen shadows of myself." This is an extraordinary and blessed revelation of the true character of Sunny Schwartz, and it is at odds with the attitudes of the many workers in the prison-industrial complex who find it easier to do the work if they dehumanize their charges.

Her observation that there are reasons why people end up behind bars, including herself, is revelatory. She writes:

But the past did matter. There are plenty of people with sad stories to tell who end up as good citizens, but I never met anyone behind bars who went through childhood unscathed. There are reasons why people end up behind bars. It's no coincidence, not for any of the inmates I've worked with, and not for me, either.

There is an irony in Schwartz's early educational history. A difficult kid, her elementary school teachers gave her the grade of "Citizenship Failure." How ironic it is that she has written a book that is such a gift to the rest of us and such a sterling example of what successful citizenship really means.

She didn't have to work in the jail to encounter monsters. Her life was indelibly marked as a child when Richard Speck murdered eight student nurses a few blocks from her house. She watched, sitting on her bicycle, as the police worked the horrific scene. Perhaps that is one reason that she chose to confront monsters in their lair instead of waiting for them in her own home.

The word that comes most immediately to mind to describe Sunny Schwartz is fearless. She says, "I confronted the monsters every day. I didn't run from them."

Throughout the book there are stories of her confrontations with fearsome adversaries, from a legendary law professor who bullied for effect to psychopaths in jail. What they all had in common was that they illegitimately exercised authority, and that is the hallmark of a despot. We are all lucky that we get to live at the same time as Sunny Schwartz; she does not suffer despots lightly, and neither should we.

Schwartz does an excellent job of describing the bureaucratic compartmentalization of the criminal justice system, quoting a line from a coworker that you hear from everybody in this business almost like a mantra: "We're not social workers" ... in other words, "it's not my job." But then she wonders, "whose job it was to fight for justice ... it was no one's job."

A Time for Renegades in the Justice System

But the law in Texas makes it the duty of the prosecuting attorney "to see that justice is done." That is why I first ran for district attorney thirty-two years ago, and it's why I stayed so long. Those words were magic to me then and are magic even now.

I had never been a prosecutor before I was elected district attorney. When I was asked during the election campaign what my qualifications were for a job I'd never done, I said that I had a virgin mind and a keen sense of justice.

Even though the law makes it the duty of the prosecutor to see that justice is done, it doesn't define justice. Over the years I've developed a definition of justice that works for me: Justice is the fairness and balance that come from healthy relationships. But what is a healthy relationship? Again, a definition that is more of an aspiration: A healthy relationship is one that shares joy, pain, and power.

Few would disagree with these notions, yet all of us have trouble living them. Our addictions get in the way, whether to substances or feelings. Schwartz points out that she "felt addicted" to the "power of my anger" and "ashamed by it." It could be said that anything we're addicted to is both a source of power to us and a source of shame. An antidote, as conveyed to Schwartz and her brothers by her parents, was: "Be a good person. Do the right thing." How easy to say. How monumentally difficult to do, especially when doing the right thing means that you have to go against all that passes for conventional wisdom.

Yet that is what Sunny Schwartz and many other workers in the vineyards of peace find necessary to do. It is a time in the prison-industrial complex for renegades. What we're doing not only doesn't work, it makes no sense. It's a lot like expecting gasoline to put out a fire.

If an aesthetically pleasing jail or prison has ever been built, I haven't seen it. But in one of my favorite passages from the book, Schwartz, in asking why we don't make jails pretty, asks a lovely question: "Why withhold easy grace?" She describes the jail in words that could apply to every jail and every prison, calling it "the kind of place where dreams went to die."

But the dreams that die in such places are not confined by the walls and fences that restrain those imprisoned behind them. Dreams escape such constraints; ultimately the inmates get out and can become our nightmares. The dreams that die are the dreams of all of us: the dreams of a safe, peaceful, and just community and nation; of cherished and nurtured children; and of honored elders. That which we do to those we keep locked up we do to ourselves.

But this book is not a how-to manual for do-gooders. Schwartz is no fool and she doesn't suffer fools gladly, pointing out that there are "a lot of flaky people in the prisoner services world," with programs that are "as effective as a Band-Aid on a broken leg." Those are welcome and familiar words for many of us who have struggled to find the golden ring of redemption as a counterpoint to our jaded and cynical colleagues whose few remaining hopes dangle by a thread.

 

Change Must Become a Mark of Manhood

The dream motif is profoundly powerful. It is the philosopher's stone of life itself. Yet behind the walls, as Schwartz points out, "no one had dreams." She asked a table of inmate card players, "What are your dreams of the future once you get out?" The only man to break the ensuing silence said, "Shit, what's a dream, man? I don't know what that is."

In most jails and prisons, lassitude and boredom are endemic. Men get up, eat, watch TV, play cards, and waste time. Nobody tries to do anything different, especially anything to change the behavior of those confined.

One reason for that is because it is a point of pride, a mark of manhood, in the confined population that nobody is going to "mess with" them, or try to change them. A friend of mine, a man who had done time in Texas as a habitual criminal, used to quote the inmates' mantra: "Don't mess with me, man. I'll do my time standing on my head. Just don't mess with me." What that means, of course, is not only that we have to mess with them; it also means that change must become a mark of manhood.

That makes Schwartz's success in implementing "a largely untested jail philosophy-create a humane atmosphere, give criminals some opportunities, [and] make them responsible and accountable for their behavior" all the more remarkable. At the same time, she was herself seeking to learn some of the moral lessons that accompany responsibility and accountability, lessons "about the sin of anger, the sin of violence and something about shame."

But who among us isn't, or (a better question) who among us shouldn't be, seeking to learn those lessons? The difference, or one difference, is that Schwartz names things for what they are. She struggles with anger when hurt or ashamed, "something many people struggled with, criminals and citizens alike." And that is part of the beauty of this book; it is a window into the soul of Sunny Schwartz.

This book is full of little and sometimes big pearls of wisdom, like the observation, "Few people were ever just the bad guy." Anybody with any sense who has ever spent much time in the criminal justice system knows that, with the exception of psychopaths-and there aren't many of those-most people are a mix of good and bad. The Shadow, like a river, will run its course; the question is which channel it will follow and whether the banks can contain it. Each of us individually and all of us together have the capacity to prepare ourselves and each other to choose that channel.

The Dysfunctional Criminal Justice Process

Anyone with any sense who has ever spent much time dealing with criminals knows that most criminal behavior is the result of anger, shame, poverty, and child abuse. Usually these are not stand-alone factors but exist in combination. They are aggravated by the criminal justice process, which is more like a game that rewards avoidance of responsibility and exacerbates anger. It is a game, moreover, that is played by professionals-lawyers, police officers, judges, probation officers, bailiffs, prison guards, and others-who make their living from the prison-industrial complex. Amateurs-the public-get to participate by watching, either in the courtroom or through the news media, or by sitting on the occasional and increasingly rare jury.

This process pretty much does away with the principle of accountability to one's peers upon which our system of justice was founded. It conflates the victim and the offender, with the latter often feeling like he is the wronged party, and the actual victim feeling like she has been victimized again, this time by the system.

Most cases are settled by plea bargaining, in which the prosecuting attorney and the defense attorney engage in what looks for all the world like a poker game, with the stakes being years taken out of the defendant's life and satisfaction supposedly given but often taken from the victim's life. Justice wins less often than the most skilled poker player. After this process, the defendant pleads guilty in court, usually with a vacant stare and oblivious to the real decision-making, which has already occurred between his lawyer and the prosecutor. The most common scene outside a criminal courtroom occurs after a plea when the defendant, shielded from the emotional consequences of his actions, asks his lawyer, "What happened in there?"

This is a travesty and it satisfies no one, not the victim, not the offender, and not the public, which is ill served and not protected by a system in which true accountability seldom if ever happens. That is in large part because of the basic structure of the criminal justice system, which keeps people apart, often for good reason in the case of the violent and psychotic. But those offenders are in the minority and like most one-size-fits-all arrangements, this one can get in the way of the genuine remorse that leads to behavior change and safer streets. That is the magic of restorative justice, or as I have come to call it, restorative community justice.

Restorative Community Justice in Austin, Texas

We started doing what we called community justice many years ago in Austin. I defined it as "an effort to reweave the fabric of community by forging a partnership between local governmental entities, the private sector, and community groups to facilitate the performance by private citizens of the functions that were once performed by the extended family, neighborhood, and school. It consists of a matrix of programs designed to increase cooperation, coordination, and collaboration among and between citizens, their local governments-city, county, and state-and private enterprise. The focus of the programs at the most intense, private, and personal level is the development of the kind of caring relationships between individuals that form the basis of community and that can only happen through the sharing of pain and joy. Such sharing once was part of the warp and woof of community, but as the community's fabric has frayed, the personal sharing of lives has diminished, and the resulting erosion of the quality of our public life is profound. The solution is to replenish our social capital, and that is what we have set out to do."

Restorative justice was the next step.

My wife, Twila, a scholar of chaos theory, and I started going to conferences at which the fledging restorative justice movement was discussed. We became friends with Kay Pranis, whom Schwartz discusses in the book, and others who had come to share our dissatisfaction with the current system and the way it actually prevents the kind of connection for which we all long. Schwartz's reaction to the magic of restorative justice was much like ours.

It's like how Schwartz describes the atmosphere in the first meeting of what was called the antiviolence coalition in the jail: "There was a sacred hush to the room, one I'd felt sometimes in temple. I felt a deep yearning for connection, for these disparate groups to find common cause and stop the suffering in our communities." This, better than anything, describes the spiritual hunger that forms the basis of restorative justice: we are all bound together in our shared grief.

A Revival of the Spirit of Democracy

Restorative justice, or restorative community justice, could be essential to our future as a democracy. Our country has at times been a bright and shining beacon when we were doing something really special with our notions of democracy and justice. But both the world and we have realized that our light has been dim lately. We are in need of a revival of the spirit that brought us forth. That is the promise of restorative justice: that the spirit of democracy rests on the shoulders of justice, which in turn rests on the shoulders of an informed and responsible citizenry. Responsibility in a democracy belongs to all of us together, and restorative justice practices make the doing of justice everybody's job. Sunny Schwartz's book is about how it can be done in even the most unforgiving and hostile environments.

What Schwartz and her compatriots have been able to create behind bars is best illustrated by the comment of a prisoner, who said, "I've been arrested somewhere like thirty times. I been to a hundred holding cells, been processed and humiliated so many damn times. But here, this is the first place where I got to work on my problems. The first place!"

Those problems end up being our problems if they are not addressed, and that quotation explains eloquently why the current system makes that work of behavior change, already the hardest there is, even more difficult. The author points out that "Voters have been happy to spend money on jails and prisons, but not on anything to keep these men out of jail."

I may be an incurable optimist, but I believe voters are getting smarter. At some point the public will realize that in our criminal justice policies we are replicating Einstein's definition of insanity by doing the same thing over and over and expecting a different result.

Restorative vs. Retributive Justice

Our criminal justice system is retributive in nature. It looks backward. That means that it is based on the principle of payback, as in, if you do that, we'll do this to you. The current criminal justice system asks three questions:

                        Whodunnit?                             

                        What laws were violated?

                        How are we going to punish the offender?                    

Restorative justice is proactive and forward-looking. It is a problem-solving approach that focuses on making things right. It also asks three questions:

                        What is the harm?

                        What needs to be done to repair the harm?

                        Who is responsible for this repair?                                                                    

There are three reasons to do community restorative justice. First, it is what people want, because it empowers them. Second, it is what victims want because they get to participate. And third, it is what the public wants because it speaks to that internal sense of justice that we all share. All of these reasons make restorative justice good politics.

Moreover, restorative justice is what the country needs. It strengthens the institutions of liberty by involving the public, and we all know in our hearts that such strengthening is necessary to rescue democracy. That makes it good government and the next evolutionary step toward a better life for our children. That means that restorative justice is what the future holds.                           

Crime victims realize that the justice process doesn't end with the courtroom. Life continues, and so does the search for justice. The relationship between the victim and the offender continues. They affect each other's lives whether or not either wants that to happen. Some victims want to work with offenders because often the victims find themselves in prisons of their own rage and for some, such work is a way to get out. Nobody can bring the reality of the effect of crime home to an offender like a crime victim.                  

I was the district attorney in Austin for many years. (I was once told by a waitperson at a restaurant just outside Dallas that a customer at a nearby table wanted to know if I was the "district eternity" of Austin.) For the first few years of my tenure I thought that justice was vengeance, and that all I had to do was to be tough on crime. And I was. Our conviction rate during my tenure hovered around 85 percent and juries, which can sentence in Texas, assessed long prison terms for dangerous people.

But as I worked with crime victims and saw their pain, I got tired of waiting for something terrible to happen before I could do anything, and so I started working on prevention. I was elected to eight four-year terms, opposed twice in thirty-two years, and both times the issue was the role of the district attorney. My opponent contended that the proper role was just processing the cases, not the kind of social worker stuff about prevention that I talked about. My campaign slogan was "not just tough prosecution but both tough prosecution and smart prevention."

I cited Austin's low crime rate as evidence of the success of our approach. In the process I learned that the public is not interested in who can sound the toughest. The public is interested in programs that ensure public safety, accountability, and the strength of community.

People want to be strong. One source of strength is self-reflection. It is too easy to just blame the offender; at a deep level the community knows this and knows it must look at itself. Restorative community justice provides opportunities for such self-examination.

That is the way that we can counteract the cultural messages that we often get from the media, which understand that fear sells.

Restoring Power to the Community

In a democracy, the power is not in the criminal justice system; the criminal justice system depends on the community. The community is the source of power in a democracy. It is the source of healing, of values. We learn our values from the institutions of community-home, family, neighborhood, church (or temple or mosque), and school. I call that the ethics infrastructure, and it is what regulates behavior, not the law. The law is just a backstop. It catches those few who make it through that team of mommas and daddies and aunts and uncles and teachers and preachers and neighbors and cousins and friends. That team has suffered over the years from the pressures of increasing urbanization and mobility. Power has traditionally resided in that team, and now that it is different from the way it was in simpler times, we must rearrange our notions of power. Restorative community justice brings that team back together in an atmosphere of shared power.

That raises the question we must ultimately face: how do we share power? The answer is as ancient as our species and it is in our bones: we share stories. Our task is to re-story if we are to restore, and restorative community justice is a way to share stories. It is a way to make the community a partner in its own protection and a way to make victim pain and public anger count. Restorative justice creates relationships through stories.

In Austin, we employ a restorative practice called Neighborhood Conference Committees most extensively in cases involving juveniles. We also sometimes employ what are called sentencing circles in adult cases. In our practices, the issue of guilt is not in question; it has been answered by a plea of guilty. The remaining questions are those of restorative justice dealing with harm, including sanctions, which can be best addressed by citizens.       

It appears to many Americans that democracy is in trouble, stalked by apathy like a wolf that is never far from the door. It manifests in a feeling of what's the use, and it is based in a sense of powerlessness to control the forces that influence our lives. That powerlessness is dangerous, because the next step is the fear that can enshroud itself in fascism.

And it's all so unnecessary. It is contrary to our tradition of a muscular people who are not afraid to determine our own values. That is the reason for the connection and mutual respect that form the basis of democracy.

It takes moral muscle to tell kids no, to sit in a sentencing circle with neighbors and confront young offenders and bullies that disturb our quality of life. That is where we get the strength to say no to corrupt government and big corporations, why we are able to influence the forces that impact our lives. That is what we have always done historically. It is our moral tradition.

The London Metropolitan Police force was founded in 1829 by Sir Robert Peel, who said:

 

The police at all times should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police; the police are the only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interest of community welfare.

 

How Everybody Can Protect The Community

There was a time when everybody took responsibility for the protection of the community. Some people rode out in posses and confronted the lawbreaker and others stayed home and took care of the victim, but everybody was involved. The real reason for the emergence of restorative justice is that, for a long time, people have been concerned about our values eroding along with our communities.

The functions that are necessary to the existence of community include the resolution of disputes and the maintenance of order. Those functions, now divorced from the community, are those of the criminal justice system. In a healthy community the ethics infrastructure made justice an organic product of community. But the historical decline of the ethics infrastructure, coupled with increased urbanization, increased the need to control the population, which led to the emergence of the criminal justice system and its artificial social controls.

The old mandate for law enforcement was to control crime and preserve liberty and freedom. It presumed an ordered society with intact institutions of liberty and communities where children were cared for and neighbors looked out for each other. The ladder then had bottom rungs, and crime was dealt with one case at a time. The police and prosecutor were reactive, and the focus of reform was on streamlining the criminal justice system and making it more efficient.

The current mandate for law enforcement is to prevent crime by being more proactive. Examples include community policing, community prosecution, and community courts. But they are not enough. They are just more government action, more case processing, more of the government taking ownership of the conflict. We are coming to understand that there is value in the conflict itself.

The evolving mandate of community restorative justice is to use the opportunities that are created by crime to solve the problem that led to the crime by reweaving the fabric of community. Like Schwartz's work, these are not just new techniques; they require a new way of thinking. They do not necessarily spring from new values as much as they represent rediscovered old values and a recognition that values must come from community.

The meaning of restorative community justice for government agencies is that they must work together and share power and authority. That is hard, given the ubiquitous turf wars of the system that are the result of scant public oversight and the erection of walls of blame over which the various agencies throw accusations.

The antidote to such bureaucratic dysfunction is for those public agencies to collaborate in bringing lay citizens into the process, teach them how to exercise power, and then work with them to exercise that power together. Community restorative justice has worked in Austin as citizens and criminal justice professionals have joined in the exercise of power through modalities like circle sentencing, neighborhood conference committees, and mediation. In short, we have tried to do in the neighborhoods much of what Schwartz has been successful in doing inside the jail.

The lesson for all of us in the challenges we face in dealing with crime is that we must mean what we say about justice and democracy. We will make mistakes, and admitting that is a new role for lawyers and other system professionals. But what we need is a new relationship with the public, an open dialogue with people through which we share power and share our passion. That's why we go into this work in the first place. This way we are giving people a way to do something directly about values in their town, in their neighborhood, and in their school. In the process of doing that, we are helping the community become more prosperous, more peaceful, and more interesting.

And that just might be justice after all.

 

Ronnie Earle is a former judge, member of the Texas Legislature, and was from 1977 to 2008 the elected district attorney of Austin, Texas. He is considered a pioneer of the emerging concept of community justice.