Criminal Law Reporter™
R E S T O R AT I V E J U S T I C E
Why We’re Here: Respecting the Very Human Stakeholders in the Conflict at Hand BY MICKELL ‘‘KELLY’’ BRANHAM estorative justice teaches us that the ‘‘essential stakeholders’’ in any criminal case are the victim, the defendant and the community impacted.1 The unfortunate but very real relationships that are established at the time of the crime between victim and offender unfold organically. People in the community reach out to one another, to those harmed, sometimes to the family of the accused, asking, ‘‘What went wrong? What signs did we miss? How do we keep this from happening again?’’ Then, as a criminal prosecution begins, these essential stakeholders are given a back seat, if any at all, to a parade of rules and procedures that not only are foreign but seem hostile and unfair. Probably the best analogy to help us understand is one of being thrown into a medical system during a health crisis. Doctors, nurses and other emergency personnel rush past us brusquely without time to answer questions or give updates. Those in charge of our fate or the fate of our loved ones are without mercy, without compassion, without any sense of human decency, or so it seems. Doctors are no more uncaring than attorneys, but both professions seem caught up in systems that provide no time or resources for human kindness. Both professions also intersect daily with individuals who are at the most painful and vulnerable times in their lives.
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1 Howard Zehr, ‘‘Changing Lenses: A New Focus for Crime and Justice’’ (Herald Press 1990).
Mickell Branham is an attorney who serves as Victim Outreach Coordinator with the Capital Resource Counsel and the Federal Death Penalty Resource Counsel Projects. She lives in Washington. The opinions, findings and conclusions in this article are those of the author and do not necessarily represent the views of the projects.
COPYRIGHT 姝 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
Blocking Out the Pain and Humanity of ‘The Other.’ Judith Herman, M.D., opined, ‘‘If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law.’’2 She was right. This is so not because rules and procedures render it necessary but because counsel for the government and counsel for the accused, singularly focused on what needs to be done to advance their cause, block out the pain and humanity of the ‘‘other,’’ whether the ‘‘other’’ is the victim, the defendant or their families. That victims and their families deserve empathy is indisputable. That defendants and their families also need empathy should be no less clear. Responsible journalists warn against falling prey to the singular narrative. No individual or his story is simple or straightforward. As Bryan Stevenson teaches, truly, each of us is more than the worst thing we have ever done.3
Learning how to better respond to those in pain in criminal proceedings may be one of the most effective ways to address the seemingly unending cycles of violence.
Victims and defendants step into criminal proceedings with trepidation with good reason. Defendants are often treated as less than human and disposable. Victims are at times treated as invisible or a nuisance. Learning how to better respond to those in pain in criminal proceedings may be one of the most effective 2 Judith Herman, ‘‘Trauma and Recovery: The aftermath of violence—from domestic abuse to political terror,’’ p. 72, HarperCollins (New York 1992). 3 Bryan Stevenson, TED Talk (February 2012, Long Beach, Calif.).
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2 ways to address the seemingly unending cycles of violence. After all, both prosecutors and defense attorneys care deeply about the safety and well-being of our families and communities. When trauma occurs, those impacted try to give meaning to the events and sometimes unconsciously adopt the familiar narrative of ‘‘good versus evil.’’ Especially in a ‘‘hyper-alert climate,’’ ‘‘a sense of ‘us v. them’ develops or deepens. . . . Projecting evil out onto the other shifts attention away from the ‘good’ side’s own shortcomings, their contribution to the conflict, and their own dysfunctions or internal societal ills. In essence, the ‘other’ becomes the sacrificial scapegoat.’’4
Leadership During Times of Crisis. Effective and positive leadership during times of crisis or threat is essential in helping individuals and communities to accurately interpret events and serve as a sort of ‘‘auxiliary orbitofrontal cortex’’ in framing the narrative.5 In contrast, ‘‘malignant leaders’’ can escalate anxiety and fear in the community by engaging in name-calling, dehumanizing by using us/them and good/evil narratives, magnifying danger and manipulating by withholding, distorting or misrepresenting facts.6 Litigating in the adversarial system, even while following codes of ethics and relevant rules and procedures, can cause harm and exacerbate pain and suffering unnecessarily. This certainly impacts victims and defendants, but it also affects attorneys, jurors, judges and the community. Repeated exposure to horrifying circumstances and graphic images of harm done to other human beings takes its toll on our community. When vicarious trauma is unresolved, it can lead to the ‘‘othering’’ even of opposing counsel. We are living in a time of extraordinary uncivil discourse. Restorative justice’s reminder of the needs and obligations of the essential stakeholders can help attorneys resist falling into that familiar trap of ‘‘othering.’’ Negligence, abuse, mental illness, intellectual disability, addiction, poverty, institutional failure and racism all contribute to individual vulnerability and are relevant in weighing culpability. The U.S. Supreme Court has consistently recognized the relevance of the ‘‘ ‘compassionate or mitigating factors stemming from the diverse frailties of humankind.’ ’’7 Victims can be trusted to understand that crime does not happen in a vacuum, that there are often very real reasons this defendant ended up in that terrible place on that particular day. Victims (and communities) often have a compelling 4 Carolyn Yoder, ‘‘The Little Book of Trauma Healing: When Violence Strikes and Community Security is Threatened,’’ p. 40. (Good Books 2005). 5 Id., p. 52. 6 Id., quoting Vamik Volkan in ‘‘Blind Trust-Author: Leaders’ Actions in Crisis Impel Conflict, Peace’’ by Betty Booker, RICHMOND TIMES DISPATCH, Oct. 4, 2004. See also Volkan, ‘‘Blind Trust: Large Groups and Their Leaders in Times of Crisis and Terror’’ (Charlottesville, Va.: Pitchstone Publishing, 2004). 7 McCleskey v. Kemp, 481 U.S. 279, 304 (1987), quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
need to find out exactly what happened and why. Victims (and communities) want and deserve real answers, not singular narratives.
Concerns Must Be Heard. Just as we recognize that there may have been a different trajectory for defendants’ lives if they had had access to even basic resources such as food, shelter, stability and mental health care, we must also remember in any given case that it is the victim who is now in that terrible place and therefore deserving of compassion, dignity and respect. Their pain and suffering is at the heart of the process. In addition to their need for information, victims need to feel safe, be heard, be validated and be vindicated. Their concerns need to be heard and addressed by all parties to the extent possible without jeopardizing due process. When we begin to truly listen to victims, we begin to understand that our assumptions of what they want and need may have been wrong all along. ‘‘The better job we do of taking care of them, the healthier our communities are going to be.’’8 Defense attorneys are beginning to recognize their special obligation to be in touch with victims to understand the damage their clients have done. They’re also learning the importance of helping to meet victims’ needs by answering their questions and addressing their concerns in a variety of ways through Defense Victim Outreach. There is a growing recognition that many of their clients were previously victims whose lack of access to care and support left them vulnerable and at risk. Especially in poor communities, families may be visiting a hospital one day and a jail the next.9
Recognition and validation of the inherent worth and dignity of every individual involved in a criminal proceeding will not only minimize the risk of re-traumatization in the courtroom but will also bring a broader understanding of and respect for the judicial process and the necessity and nobility of the role of advocates within it.
As defense teams are learning to engage in sensitive and respectful dialogue with victims, prosecutors also are learning how to better listen to victims about their needs rather than making assumptions about what is important to them. Prosecutors are also beginning to 8 Interview with Kathryn Turman, University of Akron, Oral History of the Crime Victim Assistance Field. 9 Remarks of Henderson Hill, Federal Strategy Session, Albuquerque, N.M. (November 2014).
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COPYRIGHT 姝 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
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3 recognize the importance of acknowledging that defendants have needs as well as obligations and are finding creative ways of putting that awareness into action.10 Attorney General Eric Holder, in speaking of the need for indigent-defense reform, reminds us that the values of ‘‘ ‘[e]quality and common human dignity’ . . . although lofty are attainable.’’11 10 See Frederick Gay, ‘‘Restorative Justice and the Prosecutor,’’ FORDHAM URBAN L. REV., 27:1651 (2000); Glenn M. Kaas, ‘‘Restorative Justice: A New Paradigm for the Prosecutor (A View From Hartford Community Court),’’ PROSECUTOR, Nov. 2000 at 31. 11 Attorney General Eric Holder on Indigent Defense Reform, Brennan Center for Justice at New York University School of Law, Nov. 17, 2009.
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Ours is a community of passionate professionals and dedicated public servants who are beginning to understand that zealous advocacy and empathy for those in pain in the process are not mutually exclusive. Recognition and validation of the inherent worth and dignity of every individual involved in a criminal proceeding will not only minimize the risk of re-traumatization in the courtroom but will also bring a broader understanding of and respect for the judicial process and the necessity and nobility of the role of advocates within it.
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