Talk at the Religious Coalition for a Non Violent Durham

On Thursday, February 27, 2014 I spoke to a gathering of community members at the community lunch held by the Religious Coalition for a Non-Violent Durham.

Thank you friends for inviting me to spend some time with you over lunch today. I am a Quaker lawyer trying to imagine a different way to handle our divisions around race and poverty. Whether you believe the police are engaging in racial profiling or not, whether you believe police are conducting searches without evidence of crime on people of color, there is no dispute that many people in our community feel like the police are an occupying force. Many people of color and poor people in our community are truly afraid of the police. I am not hear to litigate the issues of racial profiling, unlawful searches, or excessive force. I want us to imagine a different way to deal with these problems other than litigation. Right now, all we have is the hammer of the justice system. We can draw on our collective wisdom to find other tools in our tool kit to resolve these problems in our community. We can bring more voices to the table, and focus on healing the harm rather than on guilt and punishment.

I imagine a process that focuses on healing the harm, holds the persons who caused the harm accountable, and includes community voices in naming the harm and facilitating the resolution. This is a restorative justice process. What if we found a way to have a hearing facilitated by trained facilitators to hear the stories of people who have been stopped, searched, or harmed by the police. We can hear how they have been harmed as a community. We could hear from community members affected by these practices. We could hear from police who feel demoralized by these accusations who do not participate in these practices. We could hear from the police accused of this behavior. Then we can have a conversation as a community on how to heal this harm and move forward.

This process was used in Seattle to help heal the community when a city police officer killed a Native American with a knife. (http://www.tikkun.org/nextgen/a-restorative-circle-in-the-wake-of-a-police-shooting )

In addition to a formal restorative justice process for addressing our divisions around race and poverty, I imagine all kinds community approaches to discussing these problems. In every church, library, school, we can have conversations, play back theater, art murals, and other creative ways to raise these issues together.

Part of the discussion needs to include the racial disparities in suspensions in our schools. As we struggle to try to find ways to keep our kids in school, we should stop kicking them out by suspending them. When children make mistakes we need to help them learn from the mistakes and return to our community. Instead we are giving them criminal records at the age of 16 and throwing them to the street. An important part of restorative justice is treating all people as members of our community worth the time and compassion to include within our circle. We also need to help the members of our community returning from prison to integrate into our community, instead of leaving them forever relegated to the margins of our society where they are likely to commit crimes again.

With the race for District Attorney and the conversations on these issues at the City Council and Human Relations Commission, Durham is at a unique cross roads to choose a different path.  I have provided a handout with some concrete suggestions on how we might go down a different path.  Unless we dare to image and try a different way, we will be stuck with guilt and punishment, deny and defend, costly litigation, and hammers and nails. I believe we can do better together as a community.

Handout:

Restorative Justice

Scott Holmes, scott.holmes@nccu.edu

 Restorative Justice is an approach to criminal conduct that addresses victims’ harms and needs, holds offenders accountable to put right those harms, and involves victims, offenders and communities in this process.

Criminal Justice System	Restorative Justice
Crime is a violation of the law and the State	Crime is a violation of people, connected in relationships
Violations create guilt	Violations create obligations
Justice requires the State to determine blame (guilt) and impose pain (punishment)	Justice involves victims, offenders, and community members in an effort to put things right
Central Focus: offenders getting what they deserve	Central focus: victim healing, offender responsibility for repairing harm
Asks: What laws have been broken, who did it, what do they deserve	Asks: Who has been hurt, what are their needs, whose obligation is to repair harm?
Adversarial system of winners and losers	Collaborative processes and consensual outcomes
Determines guilt, issues punishment	Supports victims, looks at root causes of crime, finds healing for victims and offenders, supporting both

Underlying restorative justice is a vision of interconnectedness. We are all connected with each other in a web of relationships. When the web is disrupted by acts of crime, what is needed is healing processes which repair harm and hold people accountable. The current criminal justice system causes more harm, more disruptions to the web, by punishment and pain for perpetrators and isolation for victims. Restorative Justice Practices are characterized by a fundamental respect in the human dignity of every person, and their healthy inclusion in our community.

Kinds of Restorative Practices that may be beneficial in State Courts:

 

1.      School mediation, Family Group Conferencing, Community Service and Victim/Offender reconciliation programs that reduce court referrals and suspensions by using dispute resolution techniques that strengthen community.

2.      Police Warning/Cautioning Programs that divert cases from court prior to charge by using Mediation, Family Group Conferencing, services outreach and treatment programs, community service, and Victim/Offender Reconciliation. We need to find ways to avoid giving our children criminal records by diverting them into evidence based alternative programs and keeping them from the prison pipeline.

3.      Court diversion to Family Group Conferencing, Victim/Offender Reconciliation programs to supplement sentencing and give victims and community members greater role in shaping of sanctions/resolutions.

 FADE Recommendations on Reforming Police Practices

 

1.      End Current Racial Profiling – Mandate Written Consent for all Vehicle Searches. The next District Attorney could agree to refuse to prosecute any cases resulting from "consent searches" where the officer does not have the person sign a written consent form.

2.      Racial Equity Training for Officers

3.      Make Marijuana Enforcement Lowest Enforcement Priority, Increase availability of pre-trial diversion programs

4.      Create Inclusive Task Force to investigate Civilian Review Board Best Practices

http://www.southerncoalition.org/wp-content/uploads/2013/11/FADE-Coalition-Policy-Recommendations-Final.pdf

 

Recommendations for the Next District Attorney

 

5.      Stop Unnecessary Incarceration: Stop asking for incarceration for non-violent offenses, and take action to get non-violent offenders out of jail and in an alternative supervision, treatment support program at the Criminal Justice Resource Center. In particular get children, poor people, and people with mental illness out of the Durham County Jail and into services. Use citations, criminal summons, rather than arrest warrants for non-violent offenses.

6.      Divert Children away from Court: Support Judge Morey’s initiative to have police to divert children (16 and 17 year olds) from the court system who would otherwise be treated as adults in our system. Create a warning program that provides services and support rather than sending kids to court.

7.      Restorative Justice and Victim advocates: Support the role of victim advocates in the prosecution process and provide restorative justice alternatives for victims who want facilitated restorative justice conference instead of  or in addition to the criminal justice process.

8.      Change Cultural Relationship between Police Department and District Attorneys Office:  Hold police officers accountable who fail to fill out reports, fail to come to court, fail to conduct adequate investigations, conduct illegal searches, engage in unlawful drug investigation techniques, and issue charges without adequate evidence.

 

Recommendations for our Community

 

9.      Support CJRC: Increase funding for Criminal Justice Resource Center to accommodate increased role for supervision, vocational training, addiction treatment, housing assistance, family support.

10.  Stop Suspensions: Change suspension policies to work with children who make mistakes, instead of discarding them to the Street. The best way to keep children in school is to stop throwing them out.

11.  Fund Restorative Justice Training, Education, and Facilitation: Allocate a portion of City budget for a restorative justice office to train, educate, and facilitate cases where victims would prefer a restorative justice process instead of or in addition to the Court process to facilitate their healing, hold the offender accountable, and make room for community voices in our justice system. Hold a formal truth and reconciliation hearing on present issues of violence, and informal community events.

Other Reading – A Restorative Circle in the Wake of Police Shooting (Restorative Justice in Seattle for Police Shooting of Native American with knife) http://www.tikkun.org/nextgen/a-restorative-circle-in-the-wake-of-a-police-shooting

The Durham Herald Sun wrote the following article on the talk and discussion:

 

Lawyer outlines how Durham can have restorative justice

Mar. 01, 2014 @ 05:46 PM

Dawn Baumgartner Vaughan

DURHAM —

Lawyer Scott Holmes laid out his recommendations to the Religious Coalition for a Nonviolent Durham for how Durham police, the district attorney and community can foster restorative justice.
Holmes, who is a Quaker, spoke during the Religious Coalition’s monthly roundtable Thursday. Restorative justice is a term to describe justice beyond punishment, when those who commit the crime and those who are victims of crime meet in a circle atmosphere and discuss justice beyond what the law prescribes.
He asked the coalition to think about what it would look like if God was working on Durham’s issues.
“It would be a whole different process,” he said. Litigation is how society fixes things, he said, and the answer is always punishment.

“What about healing? What if the first question is, ‘How do we heal from this harm?’” Holmes asked. He talked about how children are punished but also told to say they are sorry.

He said a courtroom has two tables, each with lawyers, and the family sits in the back. Instead, he imagines circles that include police officers, judges, non-judges, someone to referee like RCND leader Marcia Owen, and someone to record what happened as well as the people involved. He said there should be lots of little meetings before the big meeting.

“Restorative justice” are new fancy words, Holmes said, but the circles are old “since people sat around a fire.” Circles wouldn’t be adversarial, but name the harm and offer a chance to say “sorry.”

“One conversation ain't gonna do it, but it’s a great starting place,” he said. Holmes said there can be more than just meetings – things like playback theater, the circle process and murals.

“In every church, library and school we can have these conversations. Every time there’s harm in the community,” he said.

Holmes suggested coalition members ask the current Durham district attorney candidates to stop incarceration for nonviolent offenders, divert children away from the court system, restore justice and victim advocates, and change the cultural relationship between the Durham Police Department and the Durham District Attorney’s Office.

For the community’s part, Holmes suggested they support increased funding for the Criminal Justice Resource Center, stop out-of-school suspensions, and fund restorative justice training, education and facilitation. He wants there to be a formal truth and reconciliation hearing on Durham issues of violence.
Effie Steele of RCND said that they need a band leader for a step-by-step process for what Holmes suggested.

“We need something to hitch our wagon on, because we’ve been talking about it for years,” she said.
The Religious Coalition for a Nonviolent Durham’s annual Vigil Against Violence will be held at 7 p.m. Tuesday at Shepherds House United Methodist Church, 107 N. Driver St., Durham.  The vigil in the sanctuary will honor the 31 people whose lives ended in violence in Durham in 2013. For information, visit www.nonviolentdurham.org.

Talk at the UNC Conference on Race, Class, Gender and Ethnicity

I am here today to try to imagine what a more loving and compassionate justice system would look like. It is a real honor and joy to get to return to UNC law and the Conference on Race, Class Gender and Ethnicity. I remember working as a law student with a group of students in the early days of this conference, and it is inspiring to see how far these law students have brought this conference in 17 years.

 

 I am also inspired to see so many people here to talk about the prison pipeline and mass incarceration. You all could be anywhere else on this beautiful Saturday morning, and you have chosen to be here because you do not want to live in a divided community. You understand that there is a great injustice happening in our midst, and you are here to do something about it. I hope to depress you, and to give you hope. I want to give you something for your tool kit to address these divisions of class and race that drive the outcomes in our schools and justice system.

I look into the audience and see many familiar faces of friends who are working hard on this problem in a wide variety of ways. I see many faces I don't know, and believe I will get to know you in the future because we are a community committed to ending this prison pipeline and system of mass incarceration. You belong to me, and now I belong to you, so please do not hesitate to email me if I can assist you in you as we dismantle this system.

With that in mind, let's turn our attention to this idea that the United States has the largest incarceration rate in the world. I am sick a tired of talking about this problem as an "incarceration rate" - like some invisible hand swooped down and incarcerated people. It's like the unemployment rate. People didn't magically become unemployed, they were fired. The same is true for our justice system. Our children were not kidnapped by an invisible monster. Our children are manufactured into "criminals" by racism and poverty to supply a prison industrial complex. No child woke up and dreamed one day of becoming a criminal. It is the adults who are failing the children, and not the children who are choosing to fail.

Our schools and justice system are too punitive. All we have is a hammer. We are using incarceration to "fix" poverty, mental illness, addiction, and children who are struggling in failing communities.  But these are problems which need other tools like treatment, economic opportunity, and social support. But when all you have is a hammer, every child looks like a nail.

We need to look at these kids struggling in our society as our own children. We need to give them the love and support we would give our own flesh and blood. We need to shift from a punitive and divisive view of us versus them, to a more connected view of our community. We are all connected, and succeed or fail together. There is no one beyond our love, and every sheep is worth risking everything to find and return to our flock.

So let me tell you a little about these kids. They are hungry. Physically hungry. There are 13,000 children living below the poverty level in my community. They come to school hungry. Maybe they pick up some breakfast out of the trashcan at McDonalds on the way to school. They are hungry for love, attention, and an achievable dream. Their father is in jail, their mother is an addict, and their grandmother is trying to raise six other children when she should be kicking her feet up and relaxing. This kid struggles to find a consistent place to stay, clothes that fit, and food. One kid saw his cousin gunned down before his very eyes. When he returned to school in the fall, the teacher asked him to write an essay about his summer vacation. What a joke. There is no vacation on the street.

In addition to being hungry, these kids are hunted by the police. They are singled out as potential trouble makers long before they make any trouble. Their trouble is a socially self-fulfilling prophecy. The statistics on the racial disparities in suspensions and searches at traffic stops tell an undeniable story of racial profiling for poor people of color. The authorities are only fishing in the pond of children of color. The police are not setting up undercover drug transactions with Duke Students; they are paying bonuses to snitches in poor communities for convictions in small marijuana purchases. When a person of color sees blue lights in their mirror they feel dread and fear because they can expect to be bullied, harassed, and disrespected. They may even get beat up, tasered, or killed. When a white person of privilege sees those lights, they have nothing to fear, even if they have cocaine in the glove compartment. 

There was a kid who was charged with resisting arrest for failing to tell a school resource officer his name; he got an attitude so the officer sent him to court. But the kid could not have been resisting arrest because he was not under arrest. So they changed the charge to obstructing an investigation. But there was no investigation either. It was a sham. He was convicted and suspended. Because he is 16, the conviction will stay on his adult record for ever. When he is suspended, there is no one to take care of him so he is adopted by the street.

The gang can feed him. They understand what he is going through. He is not alone. He can make some money to pay his grandma's power bill. He is “protected” and understood. He has “power.”

We complain about dropout rates in our school. Staying in school is the greatest predictor of success, avoiding jail and bullets. I figured out how we can keep more kids in school - we can stop kicking them out.

In addition to being hungry and hunted, these children are haunted. They have seen more violence in their young lives than some soldiers see in a deployment: A cousin who caught a stray bullet and died in front of them, a mother beaten and tortured in front of them, a policeman busting into their apartment with tear gas and putting everyone in handcuffs. They live in a perpetual state of post-traumatic stress. They can't sleep, or they sleep in the bathtub to avoid bullets. And the teacher wants an essay on their summer vacation.

The children have no hope. They grow up in a place where there are few examples of successful people. The only people with regular income are hustling on the street. They have nice shoes, a nice ride, and can keep grandma's lights on. They have a low expectation for their life expectancy, and expect to be dead or in jail by their late twenties.

I had a client early in my career who was caught up in the street.  He had a pending charge; I worked out an agreement for probation. He looked me in the eye and swore he would never spend another night in jail. It was great. He volunteered at church, mentoring youth and coaching basketball.  Then warrants for an old charge caught up with him and I got a call from the family he had been picked up. The next day I got word that he had committed suicide in the jail. He actually tied one end of the sheet to the door knob and the other end around his neck, got on his knees, and choked him-self to death. I was devastated. I interviewed detention officers. I went to the autopsy. I watched them take out each organ and weigh it. I looked into his lifeless eyes. He had lost hope, if he really ever had any.

It changed me forever. I have blood on my hands, and I am complicit in this horrible system. We are all complicit. We are also the only hope for change.

We need to bring our compassion to court. We need to infect the system with fierce and unflinching love.  We need a pre-charge diversion program to keep kids out of the pipeline. We need to keep kids in schools, and help them deal with their problems instead of calling the children themselves "problems." We need to find ways to interrupt the pipeline at every point of entry and reentry with compassion. We need to have circles of support for people returning from incarceration and assist with social reintegration.

We need to try restorative justice programs which shift the focus from the hammer, and ask how we can heal the victim's harm, hold the offender personally accountable, and involve the community in the process.

As public defenders we have to be fearless in the assertion of our client's rights against all odds and caseloads. We have to demand the time necessary to do a great job in every case, and not let the system turn legal work into triage. As civil rights lawyers we have stop the police from hunting our children. We must end racial profiling in schools and in the street. Treating our children like criminals in school becomes a self-fulfilling prophecy.

It can look daunting, but I have faith in what we are doing. It reminds me of the story of a child who found thousands of starfish washed upon the beach. He was throwing them back in the ocean when the man said, “You will never make a difference.” The boy stopped a second, smiled, and threw another one in the ocean. "Made a difference to that one."

And that's what I have to do, that's what you have to do, that's the work we must do together.

Viennese Journal 18.0: Our Quaker Work at the United Nations Commission on Crime

        On February 21, 2014 a group of friends and family gathered at the Durham Friends Meeting to enjoy treats, live music, dancing, board games, and the company of a diverse cross-section of our community. This was the third annual fundraiser to support our trip to the United Nations Commission on Crime Prevention and Criminal Justice. Thanks to many dear friends, we were more than able to reach our fundraising goal and it looks like we are headed to Vienna for this Commission in May.

    At the gathering, I shared some information about our work at the United Nations and want to summarize some of that presentation for folks who couldn't make it.

    I am amazed, inspired, and honored just to get to have anything to do with the United Nations. This became very clear to me one day at the United Nations complex in Vienna when I saw a group of school children walking into the entrance beneath the flags of all the nations. There is a circle of flags around a fountain at the entrance of the complex, representing each nation member of the United States. This circle symbolizes a commitment to participate in dialogue to resolve differences and solve common problems at a global level. The children visiting the complex witness the possibility of global governance and cooperation. Who knows what seeds are planted in these young minds and what becomes possible? A global crisis is in our future, probably involving our environment. No one country will be able to resolve it, and its going to require the cooperation of many nations to save our planet. This group of people, cultivating the institutions and culture of global governance, will be our only hope. It is an honor to contribute in any small way to this important, visionary institution.

 

Founded in 1945, the United Nations has 193 member states committed to working together to maintain peace and security, develop friendly relations among nations,  promote social progress, provide

better living standards and advance human rights.

 

 

 

There has been a Friends Center in use by Quakers in Geneva since the 1920s when the League of Nations headquarters was established in Geneva, Switzerland after the first world war. In 1948, Friends sought and obtained consultative status with the United Nations Economic and Social Council, in the name of Friends World Committee for Consultation (the worldwide body of Friends, FWCC) (http://www.fwccworld.org/fwccworld/), and re-established the office in Geneva and set up one in New York as Quaker offices to the United Nations (QUNOs) (http://www.quno.org/) . Both offices are a partnership between FWCC, and in New York, American Friends Service Committee (http://afsc.org/)and in Geneva with Quaker Peace and Social Witness (QPSW).

 

Inside the Vienna complex, representatives from member states gather to discuss best practices in criminal justice systems and ways to improve international cooperation for crimes which cross national boundaries. Our Quaker delegation talks with member representatives outside of meetings, in "side events" sharing information between meetings, and over tea and coffee.

 

 

I usually arrive early and have a croissant and some tea next to a memorial for drug addicts.  Having worked in parts of my own community where people suffer from addiction and where our criminal justice system handles the problem as a crime rather than a health problem, I am comforted that the UN Commission on Crime shares that concern. (From Coercion to Cohesion: Treating drug dependence through health care, not punishment: https://www.unodc.org/docs/treatment/Coercion_Ebook.pdf )

 

 

 Because Quakers maintain a consistent presence at this Commission, and stay at the cutting edge of social concerns in the criminal justice system, they offer humane ways of handling problems. We advance restorative justice and restorative practices every chance we get. (https://www.unodc.org/pdf/criminal_justice/06-56290_Ebook.pdf )

We also work on the Standard Minimum Rules for the treatment of prisoners.(http://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf)

We are especially as concerned with the treatment of women in prisons, (http://www.un.org/en/ecosoc/docs/2010/res%202010-16.pdf )

We have given side events on the situation of children with incarcerated parents.(http://www.quno.org/sites/default/files/resources/ENGLISH_Collateral%20Convicts_Recommendations%20and%20good%20practice.pdf )

One of the Quaker heroes I got to spend time with is Marian Liebmann. Marian showed up to the Commission in her quiet and plain dress, looking like an unassuming grandmother type. I soon learned that she is an extraordinary force of nature. As I fiddled with her computer, summarized meetings for her, and got her tea, I learned the power of her Quaker way of being in the world. You would not know it by looking at her, or even hanging out with her, that she has done more than perhaps any other person to advance restorative justice and art therapy in Great Britain and around the world.

She has traveled the world, in Europe and Africa, speaking, sharing and conducting workshops on restorative justice and art therapy. She has published many important works on these subjects.
(http://www.jkp.com/catalogue/author/297 )  Her work, Restorative Justice: How it Works, is perhaps one the best single volume explanation of restorative justice with case studies, examples, and a cross section of settings where restorative justice as been explored. (http://www.jkp.com/catalogue/book/9781843100744 ). As I spent time with her I learned of her dedication, brilliance, humor, and humility. All week long at the conference she complained about some award she was being offered in Great Britain. She was not sure if she wanted to accept it because she did not feel comfortable being awarded or recognized individually. Plus, accepting the award in London presented some annoying logistical challenges for her and her family. But, she sighed ... it would mean a lot to bring greater attention and awareness to her areas of work - Restorative Justice and Art Therapy.  I listened quietly and ignorantly as she discerned her way, and had no idea what she was talking about.  When I returned home, I received an email from a mutual friend excited to share that Marian had won the Order of the British Empire, one of the highest awards of the country.

I learned a great deal about international human rights, and have been particularly moved by the Convention on the Rights of the Child. (http://www.ohchr.org/en/professionalinterest/pages/crc.aspx ). I look forward to continue to learn and try to serve this important organization with these amazing Quakers.

Along the trip, we had a lot of fun. We visited the medieval castle where Richard the Lionheart was held captive. And we discovered a Benedictine Monastery with an advertisement out front for "Abba Night." Who knew monks like to disco.

Thank you dear friends for your love and support as we continue this adventure. I look forward to sending you more reports on this adventure as it continues to unfold.