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December 8, 2007 - Daily Pilot (CA)

OpEd: It's A Gray Area - Seeking Restorative Justice

By James P. Gray, Orange County Superior Court judge and author of the book, "Why Our Drug Laws Have Failed and What We Can Do About It -- A Judicial Indictment Of The War On Drugs."

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The main purpose of the criminal justice system is to reduce crime and all of the harm and misery that accompany it.

Although there simply must be negative consequences for criminal acts, as a practical matter this goal cannot be maximized by punishment alone. We also must employ the concept of "Restorative Justice." That means we must also concentrate upon rehabilitation and treatment of the offenders, as well as community healing.

There is no doubt that we need prisons in our society. Unfortunately, for whatever reason some offenders see the rest of us as their natural prey, and these people present an unacceptable threat to public safety and well being. Accordingly, there can be good cause to lock up people like this for the protection of the community. In that regard, I have taken a tour of San Quentin State Prison in the San Francisco area, and I have never seen so many men that had "ball bearings for eyes." The bottom line is that I was quite happy that they were where they were.

As members of a civilized society, we have an obligation to treat our prisoners humanely and to keep them safe while they are in our custody -- no matter if they are Al Capone or Jack the Ripper. Why? Because as Fyodor Dostoyevsky put it, "The degree of civilization in a society is revealed by entering its prisons." But as long as we meet the threshold of providing them with secure and humane treatment, society deserves to be protected from people who commit criminal violence, and these people deserve their fate.

But to pursue this subject further, I think the comments of a man named Pat Nolan are instructive, and we should take note of them. Nolan was a former arch-conservative member of the California Legislature who always voted for longer and longer prison sentences for more and more offenders -- until he himself was subsequently convicted of an election fraud offense and sentenced to two years in prison.

He said upon his release that, based upon his direct observations, we have many too many people in prison who simply should not be there. Then he went on to say that "We should reserve our prison space for people we are afraid of, and not people we're mad at."

Unfortunately, for various reasons, people in our country have seized upon the idea that prisons are the answer to our criminal justice problems. As a result, the United States of America now leads the world in the incarceration of its people -- both in sheer numbers, as well as per capita.

But not only is prison the most expensive approach for the taxpayers, we must also understand that about 95% of the prisoners eventually will be released. So what kind of people will they be when that happens? After their years in confinement they are normally released with a few items such as some new clothes and a pair of shoes, $200 in cash and a bus ticket.

Probably they will have gotten a tattoo in prison that identifies whatever racial group to which they belong. Probably they will still be vulnerable to any drug addictions they might have had when they entered prison. And probably they will have been rendered functionally unemployable by their convictions. As such, the likelihood they will become repeat offenders is painfully high.

So if offenders are going to be confined but eventually released, shouldn't we help to provide them with the tools that will address the reasons why they were imprisoned in the first place? And shouldn't we help to provide them some social support once they are released? Prison programs that teach and focus upon simple reading, writing and mathematical skills are a great place to start.

It is commonly known that a large majority of inmates in prison are functionally illiterate, and a basic education is the thing that will most probably keep them from re-offending. For example, about two-thirds of California's 173,000 prison inmates read below a ninth-grade level, and more than half of those fall below the seventh-grade level. Even worse, a full 21% of California's inmates read below the third-grade level. What chance do they have, particularly when there is only space for about 6% of the inmates in academic classes and only 5% in vocational classes in prison?

In addition to basic education, things like anger management and other counseling, parenting skills, alcohol and other drug treatment, job skills training, and even learning meditation techniques will help to reduce the rate of re-offending substantially.

For example, a drug treatment program in Donovan State Prison in San Diego County that addresses these problems and has an aftercare support component has reduced the level of re-offending from 80% to 18%!

But in California, even though about 56% of the inmates have a "high need" for treatment for their drug addictions, only about 9% receive any treatment at all. The same is true with regard to alcohol treatment, where about 42% of the inmates need treatment, but only 7.5% actually receive anything at all.

From my observations, and taking the advice of Pat Nolan to heart, I recommend that we begin to make much more of a distinction between violent as opposed to nonviolent offenders. People convicted of violent offenses should still be sent to prison as an appropriate sanction for their acts, but we should impose much shorter sentences of incarceration for nonviolent offenders convicted of property crimes.

Those nonviolent offenders, however, should be sentenced to be on a meaningful and strictly-applied program of formal probation.

What would such a probation program involve? It would assist the offenders in addressing their fundamental problems of substance abuse, lack of job skills, anger and rage, etc. But it would also require them to obtain and hold full-time employment. And, all importantly, it would also require them to pay about 15% of their gross wages back to the victims of their offenses as reimbursement for their crimes.

Such a program would benefit everyone. In the first place, paying about $150 or some reasonable amount to the victim each month would be a continual reminder to the offenders that there is a price for their misdeeds, and it would also allow them to support their families and keep their families together. Secondly, it would be therapeutic for the victims to receive the restitution. Thirdly, the restitution would also help to reduce the victims' insurance rates, since the reimbursed funds would go to the insurance companies, thus reducing their costs. Finally, it would be beneficial to society not only to see that the victims' losses were being addressed, but also, since incarceration is the most expensive option, it would reduce the overall cost of the system to the taxpayers.

Of course, if those on formal probation fail to take the programs and their obligations seriously, they could always be sent back to jail for ever-increasing periods of time, until they decide to perform. That return to jail would serve as a "booster shot" to remind these offenders that the judicial system is serious about their obligations to make restitution and improve themselves. Restorative justice is a different way of thinking about crime and our response to it. I believe we are living in the Renaissance period of this insightful movement, and that the more people understand it and its benefits, the more people will support it as well.

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