A Better Answer to Crime?

Published in The Hill Country Observer, November 2012 article by TRACY FRISCH Contributing writer

A Better Answer to Crime? Backers push ‘restorative justice,’ stressing healing over punishment.

EASTON, N.Y.

It was early 1996 when David Kaczynski contacted the FBI with strong suspicions that his brother, Ted, was the Unabomber.

Across nearly two decades before that, the mysterious Unabomber had mailed or delivered 16 package bombs to targets in academia and high-tech professions, killing three people and injuring 23. After The New York Times and The Washington Post published a 35,000-word manifesto from the Unabomber in September 1995 – a move the FBI supported in hopes the exposure would yield clues to the bomber’s identity – Kaczynski and his wife, Linda, read the text at their home in Schenectady and recognized similarities between the phrases used by the bomber and those in some old letters from David’s brother.

The couple soon hired a forensic psychologist who compared the manifesto with Ted’s old letters and told them there was a 60 percent to 80 percent chance both were written by the same person.

For David Kaczynski, the decision to turn in his brother was excruciating.  On the one hand, he was afraid that if he did nothing, another person could be killed. But Kaczynski also feared that his brother, whose subsequent diagnosis of mental illness confirmed his family’s fears, could receive a death sentence.

“I always thought brothers are supposed to protect brothers,” he said.

Once the decision was made, there was no turning back.  In April 1996, the FBI arrested Ted Kaczynski, and a search of his remote cabin in Montana turned up a wealth of evidence linking him to the bombings. The same day, despite David and Linda Kaczynski’s request that the FBI keep their role in the case confidential, the media surrounded their home, catapulting them into the public eye.

For David Kaczynski, the experience provided a close-up look at the many flaws of the U.S. justice system. The prosecution’s move to seek the death penalty in the case made him an outspoken opponent of capital punishment.

Ultimately, in 1998, Ted Kaczynski avoided the death penalty by agreeing to plead guilty to all of the government’s charges, and he was sentenced to life in prison. David Kaczynski said his family was lucky to have had a voice in this process – something he learned was quite unusual.

Seeking a better model

Kaczynski subsequently founded and served as executive director of New Yorkers for Alternatives to the Death Penalty.

He also becam a proponent of “restorative justice”, an approach that focuses on the needs of both victims and offenders, rather than simply on punishing the offender.

Kaczynski discussed his experiences in August at a prison reform conference held at the Spiritual Life Center, an Episcopal retreat facility in the Washington County town of Easton.

As an illistration of the potential benefits of a restorative justice approach, Kaczynski described how a law enforcement chaplain put him into contact with the family of a Unabomber victim. The family wanted to thank him personally for his role in halting the bombings, and Kaczynski and his family embraced the opportunity.

“The widow told us that all they ever wanted was for the violence to stop,” he said.

At one point in the emotional encounter, Kaczynski’s mother said she wished her son had killed her and not the widow’s husband. The widow responded by kneeling before her. Touching his mother, the woman said, “Mrs. Kaczynski, you don’t deserve that,” David Kaczynski recalled.

The woman’s response left him in awe of the human capacity for compassion.

“She was trying to comfort the mother of the man who killed her husband,” he said.

Though he was in therapy at the time, Kaczynski said, “Nothing was more therapeutic for me than meeting with this family.”

But encounters like this rarely happen in the U.S. criminal justice system.

“Relationships have been broken in our legal system,” Kaczynski said.

The concept of restorative justice rests on the idea that crime hurts – and that justice should heal. Offenders are expected to accept responsibility for their crimes and to make amends to victims and the community, but the concept also involves helping offenders to become reintegrated into the community and to avoid future offenses.

“Restorative justice invites us to open our hearts to other people’s suffering,” Kaczynski said. “Most of the people who you think of as monsters were crime victims themselves. We have lost sight of our common ground.”

A push for reform

Kaczynski was just one of a series of speakers at the weekend conference, entitled “In Our Name: Restoring Justice in America,” who spoke about the concept of restorative justice. The conference, which drew about 75 people and was videotaped for public access television, also dealt with topics such as wrongful conviction, parole reform, the effects of racism in the justice system, inadequate legal representation for the poor, and the need for mentoring and education for prison inmates.

Many of the speakers saw the current criminal justice system, with its strong emphasis on punishment of offenders, as a galling waste of money and human potential.

With one of every 100 adults imprisoned, the per capita rate of incarceration is higher in the United States than in any other nation, and the vast majority of those behind bars are black and Hispanic men. The overall number of people held in prisons has shot up dramatically since the 1970s, although it has declined slightly in the past few years.

In Massachusetts, there were 200 people incarcerated for every 100,000 residents in 2010, a per-capita rate of imprisonment that has more than tripled in the last three decades. The rates are even higher in New York and Vermont, at 288 and 265 prison in Kaiser Family Foundation.

Locking up offenders is expensive. Massachusetts, for example, spends more than $59,000 per prison inmate annually — more than the cost of a year’s education at an elite private college.

And high rates of recidivism suggest that prisons are ineffective.

Rather than focusing on retribution against those who commit crimes, the restorative justice movement aims to heal all parties affected by crimes — the victim and community as well as the offender. The process aims to make the offender accountable for the harm caused, with emphasis on restitution, and gives voice to the victim and the community. It also helps instill confidence in public safety and the justice system — something that several speakers said is being lost in the current system.

Case-by-case approach

David Karp, a Skidmore College sociology professor who addressed the conference, defined restorative justice as a dialogue involving the victim and offender that aims at understanding what harm the crime caused and how it can be repaired.

He said restorative justice has more legitimacy in the eyes of the participants because of several characteristics. It is more democratic than the conventional criminal justice system, in which key stakeholders lack a voice. And because it involves a case-by-case approach, it can be more fully tailored to the circumstances of each case, resulting in more varied outcomes.

Karp started a restorative justice program on the Skidmore campus 12 years ago, and he now provides training for other college-based programs. Skidmore’s restorative justice board, run largely by students with a faculty representative, handles 20 or 30 cases a year, providing an alternative to suspension and even criminal prosecution.

Karp recounted a case that occurred some time ago in which a drunken student vandalized a horse sculpture. At the restorative justice conference, the student met with the artist, the store that sponsored the horse and the director of the arts council.

At the meeting, the arts council director discovered that the student actually loved the public arts project and in his hometown had done an internship with a similar project. In his drunken state, he tried to take the horse as a memento.

To resolve the case, the arts council director invited the student to do an internship as community service. The student was also expected to visit and clean the horse sculpture every day. The agreement included a provision to assess the student’s alcohol consumption and ensure he didn’t have a drinking problem.

Trying alternative models

The practice of restorative justice takes different forms, including victim-offender dialogue or mediation, community conferencing (as is used at Skidmore) and peacemaking circles. The latter two approaches derive from indigenous traditions.

In New Zealand, where the Maori people are disproportionately represented among offenders in the criminal justice system, the government adapted Maori tribal justice practices to create a process that roughly translates as “family group conferencing.”

Peacemaking circles borrow their form from Native American and First Nation cultures. These circles are more structured and ritualistic than other approaches to restorative justice, sometimes incorporating ceremonial objects and storytelling to illuminate the situation at hand. Participants speak in turn when they receive a talking piece passed around the circle.

New Yorkers for Alternatives to the Death Penalty developed a powerful transformative program for adolescents called Limits to Loyalty. Kaczynski said it was an outgrowth of a community partnership that formed after the suicides of four young women, all Schenectady high school students, within a four- or five-month period.

The program brings a panel of up to eight people with diverse life experiences and backgrounds into a dialogue with an assembly of middle or high school students. Panel members have included a woman who lost a family member to homicide, a former drug dealer who spent eight years in prison and turned his life around, a police sergeant whose brother is serving a life sentence for murder, and the county district attorney.

“When we brought it to an inner-city high school, we saw everybody’s eyes light up,” Kaczynski said.

One panelist who had been a gang member became partially paralyzed at age 15 after being shot but refused to identify the person who had shot him. A month later, his best friend was shot by the same person and was left totally paralyzed. When the panelist asked the audience if anyone hated someone, perhaps 100 of the 150 students present raised their hands, some eagerly. Then he spoke of forgiveness.

A recent Schenectady high school graduate on the panel told her near contemporaries of speaking up about her abusive stepfather one time when the police arrived at her family’s home. Despite having been raised not to air family problems, she found her voice and helped break the cycle of domestic violence that she had lived with for 16 years.

“I have never seen such wisdom in someone so young,” Kaczynski said.

Giving victims a voice

In his work with New Yorkers for Alternatives to the Death Penalty, Kaczynski became acquainted with Marie Verzulli, a Schenectady resident whose sister went missing in 1996. Two years later, the sister’s remains along with those of seven others were discovered at the home of a serial killer in Poughkeepsie. After the district attorney withdrew his motion for the death penalty, the suspect pleaded guilty to all charges.

At the killer’s sentencing in 2000, the families of the victims were allowed to give victim impact statements.

“It was the only part of the procedure where we had any voice,” Verzulli recalled.

Both Verzulli and her mother wanted to meet the man that had taken their family member’s life. It took years to be granted permission, but ultimately they had a dialogue with him that lasted more than two hours.

Verzulli said she was motivated by a desire to find out more about him.

“Whenever you have the opportunity to understand a little more about someone else, you get to work on your own empathetic side and grow as a person,” she said.

For her mother, the unusual meeting was about offering forgiveness. “She was not going to let him put hatred in her heart,” Verzulli said.

The killer didn’t exactly take responsibility for the crime.

“He never once said to my mother, ‘I’m sorry I killed your daughter,’” Verzulli said.

Although they would have welcomed such a response, that wasn’t the point, she added.

“The real power of restorative justice is being able to have that open, honest dialogue and being able to accept where people are at without expectation of what does or does not happen,” she explained.

Preparation for these difficult encounters is, in her view, the most important part of the process for both parties.

“A lot of times it may not even go to dialogue,” said Verzulli, a member of the Restorative Justice Commission of the Diocese of Albany.

International contrasts

As a leader in the Forgiveness and Reconciliation Project, the Rev. J. Edward Lewis has worked with offenders, victims, families and communities internationally. He focuses on a restorative justice approach for countries torn by civil war and ethnic violence.

Lewis, who has been a prison chaplain for 17 years and is president of the New York State Protestant Chaplain Association, spoke at the conference session on “Justice in Black America.” As a leader in the Forgiveness and Reconciliation Project, he has lately been traveling to Rwanda a couple times of year.

The situation there is unlike anything in this country, he said.

“Not only are victims and genociders living side by side, but sometimes they are living in the same house,” Lewis said. “My Western mind could not wrap around it.”

In a process modeled after South Africa’s Truth and Reconciliation Commission, in Rwanda traditional village elder courts mete out judgments against people accused of genocide.

In the U.S. prison system, Lewis said he sees injustice at different levels, from racial profiling to the continued incarceration of the elderly, infirm and even cognitively impaired.

“Are we trying to help people, or are we simply warehousing them?” he asked.

He said he doesn’t see much evidence of restorative justice taking hold in the United States yet. Rather, in his view, the movement is “just a talking piece in the rhetoric on justice.”

Lewis has brought a few prison superintendents on visits from Rwanda to New York, including some who attended the state prison superintendents’ school. One of the superintendents was a woman lawyer under 30 who had lost family members in the genocide. She ran a prison in Kigali with 5,000 inmates and perhaps 25 guards, Lewis said. Only a few of the guards had guns, he added.

On her first trip here, on a visit to Fishkill, she asked if the prison campus there was a university, he said. Then, when they went to another prison that has galleries and cells, he said she became quiet.

Afterward she asked, “Why do you have people in cages? Cages are for animals.”

“I didn’t see any bars in prisons in Rwanda,” Lewis said.

For minor crimes only?

There are many community-based restorative justice initiatives in the United States, and states such as Ohio, Pennsylvania and Texas have strong victim-offender dialogue programs. But in this country, government officials tend to regard restorative justice as appropriate only for nonviolent offenses.

Karp, however, said some studies suggest that the more serious the offense, the more powerful and effective restorative justice can be.

He pointed to the success of a Canadian faith-based program called Circles of Support and Accountability that works with high-risk sex offenders. Community volunteers meet with the offenders regularly to provide social support and assist with reintegration, such as finding a job and housing. The volunteers also make sure that the person follows through with their restorative justice agreement.

Vermont is the only state in the region with a substantial restorative justice program. Vermont judges may sentence people convicted of less serious crimes – shoplifters, bad check writers or drunken drivers, for instance — to probation on the condition that they appear before the county restorative justice board. The local boards use tools such as apology, restitution and community service and focus on reducing the risk of re- offending.

“When you face the victim, you can’t really deny your responsibility,” Karp said.

In New York, Albany County District Attorney David Soares has replicated the Vermont model for certain offenses. This allows his office to avoid prosecuting minor drug crimes under the harsh Rockefeller drug laws.

Vermont established its program with the intention of avoiding having to build another jail, Karp recalled.

“But I don’t think that panned out, because of our public desire to incarcerate,” he added.

Teaching empathy

Verzulli has not shied away from the work of reaching people who have committed acts of great violence. Along with other victims, victim advocates, defense lawyers and parolees, she has served as an adviser for a self-awareness class developed by the Osborne Association for “long-termers” in prison for murder.

“The course helps in developing empathy and in understanding why you may make the choices you make,” she said. “It is a lot of really hard work.”

Prisoners have to apply and be interviewed to get into the class.

“I don’t think you can fake your way through this,” Verzulli said “It’s much more difficult than just doing your time.”

The 16-week class, which is co-facilitated by a psychotherapist, has participants going back into childhood, “remembering good and bad things” and becoming aware when they were “first harmed,” she said.

Among the class participants, extremely violent, traumatic life situations are the norm.

“You don’t develop empathy if no one has ever been empathetic to you,” Verzulli said.

When she told her own story to three of these groups, Verzulli discovered that practically all the men in the classes shared her experience of losing a family member or a best friend to homicide.

“Punishment is not going to change your behavior,” Verzulli said. “You do your punishment and you’re done. It doesn’t mean you’ve learned to correct your behavior.”

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