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Making Criminals Pay

Thursday, January 1, 1998

After a few drinks, you could count on Joseph Minotti to climb into his car and become a highway menace. For the better part of a decade, Minotti routinely drove in Genesee County, New York, while under the influence of alcohol. Six times he was arrested for driving while intoxicated (DWI). Law enforcement officials had fined him, jailed him, and revoked his driver’s license. Minotti simply forged another license and got back on the road.

Following his seventh arrest, Minotti was charged with felony DWI and faced three to seven years in prison if convicted. But the presiding judge wasn’t convinced that time in a cell would produce a change in attitude. He recommended Minotti for the county’s pre-trial diversion program.

This was no cream-puff experiment in alternative sentencing. Deputy sheriffs made unannounced visits to his home. Counselors dropped by to see how he was doing and to conduct random urine tests. For six months, from 10 p.m. to 7 a.m. every day, Minotti was under house arrest.

Even Minotti’s waking hours were carefully regulated. He was ordered to perform 200 hours of community service for the American Red Cross. He attended two Alcoholics Anonymous meetings per week, joined individual and group counseling, met weekly with a minister, and attended victim-impact meetings at Mothers Against Drunk Driving (MADD). The sheriff’s office sent monthly progress reports to the judge, the district attorney, Minotti’s lawyer, and the president of MADD.

The county’s plan paid off. "I would like to apologize to the community of western New York for my conduct over the past 10 years," Minotti said in a statement released to local newspapers. "I have finally turned my life around." Minotti, who now runs a business in nearby Erie County, has been law-abiding for the past seven years.

Genesee County’s felony diversion track is part of an unorthodox crime strategy that is rattling both conservative and liberal assumptions about crime and punishment. Under the Genesee Justice program, justice may not mean jail time; but neither will it endorse "rehabilitation" programs that refuse to engage an offender’s conscience. Run by the sheriff’s office in Batavia, the effort unites county judges, prosecutors, and law enforcement officials with one objective: to devise punishments that make criminals personally responsible for their misdeeds—both to their victims and their communities.

"Judges usually take the route of least risk," says Douglas Call, a former county sheriff and an early advocate of the program. "And the least risk is to throw people in jail. But if the sanction of society is simply incarceration, offenders will go back to the same behavior."

In Genesee County, the aim of punishment is not merely punitive, but restorative: to help repair the harm done to victims and their families. So while traditional sentencing relies heavily on jail time and probation, the county emphasizes restitution and community-based service. While most judges, lawyers, and prosecutors quietly cut backroom deals—shutting victims out of the negotiations—Genesee offers intensive victim assistance and involvement in nearly all phases of the judicial process. While most jurisdictions typically forbid contact between offenders and their victims, Genesee arranges face-to-face meetings to promote reconciliation.

Advocates call these efforts restorative justice, a religiously rooted philosophy that redefines crime as an offense not primarily against the state but against human beings.

"Defenders of the current system think violating the law is the problem," says Karen Strong, co-author of Restoring Justice. "It is, but only because there is a violation of a person in the community." In the Hebrew tradition, crime is understood as a breach of shalom, or the sense of wholeness between individuals, the community, and God. It is time, supporters say, to make the restoration of the crime victim a central objective of criminal-justice reform.

The Genesee model is on the front lines of an emerging nationwide movement to connect punishment to the needs of crime victims. States and localities now host more than 300 mediation programs, in which offenders meet with their victims and pledge restitution or community service. In a single year in Oklahoma, the state arranged a thousand such meetings, yielding $300,000 in reparation agreements and 32,000 hours of community-service work. Vermont now puts low-risk probationers under the direct control of a community board, which determines reparations to the neighborhood and to the victim. The Minnesota Department of Corrections has two paid staff members to help jurisdictions throughout the state bring victims into the judicial process.

"Our adversarial system does not involve the victims," says Dennis Wittman, Genesee Justice’s program director. "We’re changing that. We’re saying to the criminal that he’s going to be accountable to this victim. And we’re saying to the power players that they will have to meet with the victim and explain what they’re doing."

Build It, and They Will Come

The Genesee County program, now more than 15 years old, began almost as an electoral fluke. In a 1980 run for county sheriff, Douglas Call sounded a dubious campaign theme: He argued against construction of a maximum security prison.

It should have been a losing strategy. Genesee County is a small, mostly white, and deeply conservative community 10 miles north of Attica state prison in western New York state. Crime rates were on the rise locally and throughout the region. Neighboring Livingston County, comparable in size and demographics, had just approved a similar facility.

"Once you build it, you fill it," Call says. "I didn’t want to build a new jail until we’d learned to make lawbreakers responsible, and then we would use jail as a last resort." Call’s platform not only helped him win the election; it has become the creed for what observers call the most advanced experiment in restorative justice in the nation.

It is difficult to dismiss the results: Officials say that, in the past five years, they have saved more than $2 million, or about $55 a day per inmate, by keeping hundreds of nonviolent criminals out of jail. With extra cell space, the county has generated $3 million over the same period by accepting federal inmates for a fee. (Livingston County, meanwhile, faces overcrowding and is planning to renovate and expand its facility.) Criminals have paid thousands of dollars in restitution to individuals and community groups. Defendants in alternative sentencing programs have performed more than 250,000 hours of community service, including the restoration of a town hall, the expansion of a Baptist church, and thousands of man-hours of painting, cleaning, and construction work.

Most importantly, Genesee County is a safer place. Although its population, now 61,000, has grown slightly since 1980, incidents of felony offenses have dropped by 14 percent. Reports of aggravated assault, burglary, larceny, and car theft have declined. Felony diversion, the county’s most daring program, seems to be working: For felony offenders, the recidivism rate—which counts re-arrests for any crime—is less than half that of criminals sentenced to prison or probation.

Putting Victims First

Genesee’s restorative philosophy takes its cues from those hurt not only by crime, but by the criminal justice system itself. Lisa Funke, a victim-services assistant with the sheriff’s department, has worked with hundreds of crime victims. The most common theme: frustration with the system.

Victims complain of a lack of information about their cases, no communication with police after an arrest is made, little contact with the prosecutor’s office, and a sense that they are being overrun by the criminal-justice machinery. Worse still, there are unanswered questions about the reasons for the crime and lingering fears of being re-victimized. "They need an advocate, somebody who will listen to them, somebody who is familiar with the system," Funke says. "They don’t think anybody cares."

The county’s victim-assistance programs, which last from 6 to 24 months, put a premium on keeping victims and their families in the information loop. Within a few weeks after a crime is committed, Wittman’s staff will suggest a meeting with the district attorney. They help arrange police protection, set up counseling sessions, secure medical assistance, file compensation claims, accompany victims to court, and offer regular reports on defendants who’ve entered alternative sentencing programs.

Since 1982, Genesee has taken on nearly 400 cases involving serious or violent crime. Consider a vehicular manslaughter case, in which three high school students and their driving instructor were killed. The accident demanded outreach to all four victims’ families. Over an 18-month period, Wittman’s office made more than 200 contacts with family members—involving home visitation, weekend meetings with the prosecutor, evening discussions with crime specialists, and information on counseling and other services. "They were here day and night," says Patricia Reeves, whose daughter, Rhonda, was killed in the crash. "Anytime we had questions, or a problem, or wanted an answer, we would call Dennis’s office. They were wonderful in assisting us."

Other criminal-justice groups have followed suit. Prison Fellowship Ministries, the largest Christian outreach effort in America’s prisons, launched its own assistance program in 1990. Called Neighbors Who Care, the effort mobilizes churches to offer practical and emotional help—from replacing broken windows to lending a listening ear. Volunteers from congregations in 10 communities have so far assisted 26,000 crime victims.

There’s a growing consensus that such outreach work is crucial to helping those hurt by crime obtain a sense of justice and resolution. "At the heart of their anger is the feeling that the criminal justice system does not represent their interests," says Eduardo Barajas, program specialist at the National Institute of Corrections, in Washington, D.C. Unless that changes, he says, "victims continue to lose." Genesee County sheriff Gary Maha is more blunt: "We don’t want them to be victimized again—this time by the system."

Making Amends

Bad verdicts and hollow sentences, of course, are another major cause of public angst. But restorative justice advocates see a deeper problem: the equation of jail time with justice. "We’re not saying we don’t need to incarcerate anyone," says Greg Richardson, the director of the Restorative Justice Institute, in Washington, D.C. "But victims need a sense that what’s happened to them has been addressed." Incarceration, by itself, often fails on this count.

Restitution or reparation agreements, in which criminals pay back their victims and the community, are an obvious step toward accountability. "Restitution is one of the most tangible ways to bring the victim to the forefront and repair the damage that was done against him," says Carol Meyer of Justice Fellowship, the public-policy arm of Prison Fellowship.

Restitution programs have been multiplying since the 1960s, and are essential to Genesee’s restorative philosophy. Payment is made directly to victims, their families, or organizations they designate. A man convicted of negligent homicide, for example, paid $4,000 to an education memorial fund; a DWI offender paid $200 to Mothers Against Drunk Driving; a felony drug offender paid $500 to two local hospitals. All agreements, as part of sentencing or pre-trial diversion, are tightly enforced by the sheriff’s department or the county’s probation office.

That’s not the case in most other jurisdictions, however. Though judges commonly order restitution as part of a sentencing agreement, observers say it is rarely collected.

"It’s a wasteland. Collection systems are virtually nonexistent," says Dick Wertz, the national director for field operations at Justice Fellowship. Wertz’s organization, which is pushing restitution reforms at the state and federal level, found that virtually none of Pennsylvania’s 67 counties could give a current status of collection efforts. He guesses that fewer than 5 percent of the payments ordered are ever collected. "We have yet to find a state that is doing an effective job."

Critics say that expecting restitution from convicts is wholly impractical; most lack the means to pay. It’s not a new problem: In his 1516 book Utopia, theologian Thomas More proposed that convicts be paid to work on public projects in order to reimburse their victims. In Pennsylvania, Justice Fellowship has helped author legislation that would establish a restitution fund by charging a fee to anyone on parole or probation.

Without reparation, crime victims surely will remain isolated, angry, and convinced that no one has addressed the harm that has overtaken their lives. For many restorative justice advocates, this represents a profoundly moral and religious issue. From the Mosaic law in the Old Testament to the story of the penitent tax collector Zacchaeus in the gospel of Luke, restitution is a key step in securing justice for victims of crime.

"The system is failing because there is no moral connection between the act of harming and the punishment meted out," Strong says. Compelling criminals to compensate their victims for the harm done—either with money or service—builds a bridge of accountability. "The biblical view of punishment is one that holds people accountable," says Kirby Trask, a victim counselor with the sheriff’s office. "As a Christian, you have a duty to do all you can to see a person take responsibility for what he’s done."

A Broken System

Howard Zehr, one of the early architects of restorative justice in the United States, says the problem is much bigger than restitution. Traditional approaches—from plea bargaining to a preoccupation with jail time—do not pressure offenders to own up to their misdeeds. Says Zehr: "It insulates them from the damage they’ve done."

In Genesee County, nearly all of the system’s power players, some with 30 years’ experience in criminal justice, have reached the same conclusion. "Traditional ‘jail-’em-and-bail-’em’ doesn’t work," says Sheriff Maha. "It doesn’t change behavior." Glen Morton, a former New York trial judge, says that jail poses no threat to most criminals and offers little remedy to their victims. "The [prison] system is really designed for hard criminals," he says. "It’s a holding device for those who are violent and habitual."

For the majority of offenders, Morton says, "let’s circumvent the system." In other words, use alternative sentencing—community service, strict curfews, restitution agreements—to "help offenders become more morally accountable." The most striking aspect of the Genesee model is that it applies this concept to serious crime. The county’s felony diversion track typically steers offenders away from prison; it has handled cases involving assault with a deadly weapon, sodomy, drunk driving, attempted manslaughter, and even murder.

A Conscience Awakened

Robert Williams, facing a possible murder charge, seemed like a good candidate for the program. According to the sheriff’s office, in 1993 Williams rushed to the aid of his brother, who was being attacked by a man in his Batavia apartment. Williams stabbed the assailant several times in the apartment and, after the man fled the room, stabbed him again in the street—an act considered a homicide under New York state law. "Even though maybe it wasn’t intentional, they could only drop it to manslaughter," says Wittman, "and he’d still be in the deep end of the Niagara River."

Williams was no choirboy: He had been arrested for disorderly conduct and domestic violence. But the prosecutor was not prepared to push for a murder charge and asked Wittman’s office to get involved.

Genesee Justice staff already were working closely with the victim’s mother and sister in Rochester, helping them cover funeral expenses and develop a victim impact statement for the court. Wittman set up a felony diversion program for Williams, outlining 14 separate conditions to be enforced by the sheriff’s office over the following six months. Monthly reports on the defendant’s progress would go to all the key players: the judge, the prosecutor, the defense attorney, and the deceased victim’s family.

But Wittman wanted more community input and suggested that Williams meet with leaders of two black churches. He agreed. For two hours at Batavia’s Mt. Zion Church, Williams—with his mother present—was grilled by a dozen church leaders: Why did this happen? What are you doing to turn your life around? Are you taking care of your children? The ministers told Williams they would support him only if he complied with the terms of his diversion.

Williams held up his end of the agreement, and church leaders asked for leniency. He was found guilty of second-degree manslaughter, put on probation—and he avoided jail time. "This is a conscience issue," Wittman says. "The community can bring that home a lot better and clearer" than criminal-justice professionals.

Soft on Crime?

Genesee County supports its court-approved diversion track in several ways. First, there are roughly 120 agencies that agree to employ offenders in community-based work programs: cleaning up parks, painting churches, filing books in libraries, mopping hospital floors. Second, Wittman’s office has recruited more than 100 volunteers to befriend and mentor offenders for at least the length of their diversion. Finally, the sheriff’s department assigns road patrol officers to check whether participants are meeting the terms of the agreement. Says Maha, "When a sheriff shows up at your door at 11 p.m. to make sure you’re home, that has an impact."

It is an impact that jurisdictions can measure. Since 1985, approximately 3,200 adults have been given community-based sentences, imposed in lieu of a fine or jail time or as a condition of probation. Most of them, about 92 percent, met all the conditions of their sentences. Genesee judges and county police say that few people completing these programs have re-entered the system. The county also approved about 150 felony diversions over the same period, with all but a handful of offenders completing their programs without incident. Of those cases, Wittman says, only 20 percent have been re-arrested, mostly for nonviolent offenses. Nationwide, the recidivism rate for felons committing similar offenses varies from 40 to 60 percent.

Restorative justice advocates insist that its core principles—accountability, restitution, community-based sentences—are anything but soft on crime. Most are quick to stress the importance of keeping violent and incorrigible criminals off the streets. All candidates for alternative sentencing, for example, are carefully evaluated; criminals who show no remorse are screened out. "Certainly there are offenders who need to be locked up," says Lawrence Friedman, Genesee County’s district attorney. "But there are vast numbers of people who don’t need to go to prison and who should be paying a debt."

Herein lies perhaps the most heinous omission of liberal-minded prison programs: They fail to confront the offender with the wrongness of his actions and force him to assume responsibility for making amends. Government funds a litany of courses in self-esteem, behavior management, and therapy in our prisons. What is missing in most of them is the moral dynamic. Without it, criminals continue to focus on themselves, not their victims. "They basically tell criminals that nothing is their fault, that they’re a victim of their past, or of discrimination, or whatever," says Jeff Kimmel, the chief of staff at Justice Fellowship. "Part of what morality is about is empathy, about understanding the impact of your behavior on others," says Zehr, author of Changing Lenses. "The stereotypes and rationalizations that offenders use to distance themselves from the people they hurt are never challenged."

Reconciliation

Perhaps the most fertile setting for challenging criminals to change, while bringing emotional healing to their victims, comes during reconciliation meetings. Traditional criminal justice scorns this approach: Defendants are coached to deny their guilt. They and their attorneys square off against victims and prosecutors. The system is by nature adversarial.

The purpose of reconciliation meetings is to offer a face-to-face encounter between victim and offender to resolve their conflict independent of a court decision. There are scores of reconciliation programs in the United States, addressing violent and nonviolent offenses, involving juveniles and adults. They may be set up before or after sentencing, and are always voluntary.

An offender must first admit his guilt and show signs of remorse. Says Trask, "The majority of cases in the system involve people who are not truly dangerous, who express some sense of remorse, but aren’t given the opportunity to make things right."

This is their chance. With a mediator present, victim and offender discuss the crime and its effects on the individual and his or her family. Victims are allowed to tell their stories fully. Eventually they discuss how the perpetrator can help repair the damage.

The impact of such encounters on criminals can be profound. Judge Morton recalls an exchange between a man convicted of burglary and the woman whose house he had robbed. She told him she now felt less safe sleeping in her own home than baby-sitting at a friend’s house. "For the first time the defendant has a practical example of the impact of what he has done," he says. "It helps him to understand why his behavior is really criminal."

A 1994 study conducted at the University of Tennessee College of Social Work showed that juveniles who joined reconciliation meetings were half as likely to commit other crimes as those who didn’t. Daniel Van Ness, co-author of Restoring Justice and a vice president at Prison Fellowship International, relates a letter he received from an offender who participated in a program in California. "The offender needs to be made aware that the harmful effects of a crime extend far beyond the crime itself," he wrote. "Many offenders may not care, but many will, and I can tell you, beyond hesitation, very few offenders have ever given this much thought."

For their part, victims often gain the sense that justice has been served and that they can get on with their lives. Mark Umbreit, the director of the Center for Restorative Justice and Mediation at the University of Minnesota, conducted a 1994 study of victims who joined in mediation sessions with their offenders. Those who participated were twice as likely to say the system treated them fairly (80 percent) as those who did not.

A Severe Mercy

Beyond the issue of fairness, however, is forgiveness. And here is where even the most conservative approaches to criminal justice—by focusing exclusively on punishment—may miss the mark.

Except as a witness for the defense, Judith Fairbanks wouldn’t have gotten much attention from the traditional justice system. Her 15-year-old son, Jeremy, was arrested and charged with killing another boy, Sammy Griffin, in a dispute over a girlfriend. She and the victim’s family, however, were friends. She couldn’t bear the thought of never again speaking to Ann Griffin, Sammy’s mother.

So she called the sheriff’s department to see if Wittman could help set up a meeting. The call stunned him: "It came out of the blue, like most of what happens around here." Wittman called the Griffin family, which reluctantly agreed. "Some members of the family wanted Jeremy to hang from the highest tree," he says. Jeremy, charged as an adult with murder, had not yet been sentenced. But Wittman got a green light for the meeting from the presiding judge, the district attorney, and the defense attorney.

The two mothers, with Wittman, met "very quietly" several times at the First United Methodist Church in Batavia. The meetings went well, and Wittman suggested that the women and their families host a community prayer service for their two sons. Ten days before Jeremy was sentenced, the mothers held a service in a church across the street from the sheriff’s office.

Ann Griffin mourned not only the death of her son, but the fact that "every day Jeremy has to remember." Judith Fairbanks spoke about her private meetings with her friend. "There is no anger or bitterness between us," she told those assembled. "We have cried tears over the same things. We have compassion and understanding for each other and our children."

The role of churches in reconciliation can hardly be exaggerated. A reconciliation program in Clovis, California, recruits its volunteer mediators from 42 local congregations—the places we expect to encounter some measure of mercy. "The faith community gives us the idea of forgiveness," says program director Ron Classen. "Forgiveness allows us to take an injustice and transform it into something that improves people’s lives and helps them to heal."

Forgiveness: There is no more important theme in the Bible. Paul’s charge to Christians in Turkey—"forgive as the Lord forgave you"—remains the most concise yet powerful summary of Christian theology on the topic. For when we forgive, we yield any claim to resentment or retribution. Christian forgiveness is not the same as naiveté, however, nor does it wink at wrongdoing. Rather, it acknowledges the evil act for what it is, but holds out hope for the evil-doer.

Used in conjunction with restitution, community-based sentencing, and victim assistance, reconciliation programs can help both offenders and victims recover from the most painful of criminal acts. Indeed, a restorative approach to crime—one that tempers justice with mercy—could be the surest way to bring about a system that is not merely punitive but, in the end, redemptive.

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