(The opinions expressed on this page are not necessarily those of the New Hampshire Journal. The Journal welcomes opinions on all sides of issues and from all candidates for office.)
By ROBERT EHRLICH AND ALEX TALCOTT
Jobs-and-the-economy has been the number-one polled issue for Americans for some time, with post-9/11 terrorism the only real break since the first Clinton’s first presidential campaign. The Ferguson grand jury changed the conversation. It has sparked some of those overdue bigger-picture conversations on race, criminal justice, and civil society that were last credibly called for in the presidential context by Senator Bill Bradley’s 2000 Democratic primary campaign. (President Obama’s 2008 Reverend Wright speech in Philadelphia stopped short of a reform agenda.) To that national and New Hampshire conversation, we offer voices for – and some examples of – real reforms in criminal justice.
The president’s nomination of a new attorney general captured the attention of the political class more so as a successor to the embattled Eric Holder than the story of nominee Loretta Lynch in her own right. Notorious for the Operation Fast and Furious gun-running sting, dropping a DOJ civil suit over New Black Panther Party voter intimidation, and his “nation of cowards” remark, Holder has not received credit where due on Fox News or talk radio – or on MSNBC or anywhere in mainstream media for that matter – for his normalization of offender reentry.
The Crime Report, published by the John Jay College of Criminal Justice’s Center on Media, Crime and Justice in New York, noticed the October meeting arranged by the AG Office’s “Interagency Reentry Council” that included eight formerly incarcerated offenders who are now civic leaders. Among the attendees was the post-PC Glenn Martin, who did six years for robbery, exiting Attica in 2000 to accrued child support with interest. This year he founded JustLeadershipUSA, which aims to accelerate “decarceration” with a “dedicat[ion] to cutting the U.S. prison population in half by 2030 while reducing crime” (emphasis added) by “empower[ing] the people most affected by incarceration [families and communities] to drive policy reform.” There was a tony Tribeca rooftop launch last month, but it’s a thoughtful cause. Moral and emotional high grounds are often inappropriate when addressing social deviance that has risen to criminality where one in four Americans have a criminal record (The National Law Project) and presidents have committed likely felony drug offenses.
In Maryland, I authored and passed the “Project Diversion” legislation that created a unique state-structured incarceration-alternative system for prosecutors of nonviolent offenses through “nolle prosequi for drug or alcohol treatment” or “stet for drug or alcohol treatment.” Prosecutors appreciate constructs that reinforce that they are employed by taxpaying citizens to seek justice first, not simply convictions. Social workers appreciate tabling cases on stet, or inactive, dockets in recognition of limited treatment facilities and resources. Such innovation even made a fan of hip-hop mogul Russell Simmons (a former detractor) who appreciated Project Diversion as a “commitment to communities” by the Bob Ehrlich-Michael Steele ticket and administration.
My tenure as governor also saw the implementation of Project RESTART (Reentry Enforcement Services Targeting Addiction, Rehabilitation, and Treatment) in a number of Maryland prisons. Our Administration was willing to invest more in correctional education, substance abuse treatment, social work, and offender reentry, based on exhaustive studies establishing the importance of cognitive restructuring programs, academic and vocational skills training, and treatment in reducing recidivism.
There are also straight-up circumstances where clemency is right and just. As governor, I granted and denied hundreds of pardon petitions, putting considerable resources behind so-called “cold” cases where justice was not served. I also reversed my predecessor’s blanket policy of refusing to consider lifer cases for clemency per a State Commission on Criminal Sentencing Policy that endorsed case-by-case analysis. The bottom line: some behind bars are innocent, some are serving disproportionate sentences for their roles in incidents, and some by their very being “away” are depriving families and communities of their time and talents.
Fatherhood, family, and faith constitute essential elements of a comprehensive offender program. Corrections-focused fatherhood programs are among the core competencies of the Germantown, Md.-based National Fatherhood Initiative. NFI designs and provides evidence-based programming to correctional facilities and related institutions to promote rehabilitation and reentry. It makes a cost-benefit proposition – that its promise to “address criminogenic needs and support cognitive-behavioral interventions” with fathers saves money and lives.
As reported in The Atlantic, during Dr. Nicole Brown’s Johns Hopkins Hospital residency, she discovered recurring trauma histories in low-income patients who had been diagnosed with attention deficit hyperactivity disorder (ADHD). Now substantiated by a study presented to the Pediatric Academic Societies, “it’s clear that some misbehaving children might be experiencing harm that no stimulant can fix.” Family can be a fix.
The head of the U.S. Conference of Catholic Bishops, Archbishop Kurtz of Louisville, at beginning of the Conference’s fall general assembly in Baltimore last month, invoked Pope Francis’s framing of the Church as “a place of mercy freely given, where everyone can feel welcomed, loved, forgiven, and encouraged to live the good life of the Gospel” (Catholic News Agency). Mercy and forgiveness are virtues of governmental criminal justice structures, even if given less freely and with less pointed encouragement on the ‘what’s and ‘why’s of a good life.
There are new frontiers for healing. The Pew Research Center found one in five Americans shared their faith online during the 2014 week polled (not Easter week, and it’s not Christmas yet). Whether for celebration, salvation, or more ordinary reaffirmations, there is yearning and opportunity for growth there. Forty percent of people in the same survey shared their personal faith offline in the same week. When you then consider the values and norms undoubtedly shared by those who do not identify as religious at all, we’re just not very private people when it comes to our fundamental beliefs, struggles, and questions. Getting out of other comfort zones and communicating through different media in different forums with different people will, more so than our currency, honor the value of e pluribus unum.
In New Hampshire, there are examples of progress as well. In the North Country, the Tamworth-based Tri-County Community Action Program’s Restorative Justice Center offers, among other things, household mediation—“parents and kids learning new ways to resolve conflict.” CADY (Communities for Alcohol- and Drug-free Youth) accepts Lin-Wood, Newfound, and Pemi-Baker region court diversion referrals as “A Second Chance for First-Time Youth Offenders.” Eligibility depends on “parents who are willing to make an active commitment to the process” of dialogue and amends.
Restorative justice may or may not have been in New Hampshire headlines in the case of a 17-year-old charged with hitting two pedestrians, injured but surviving, while driving under the influence of alcohol and marijuana in Hampton this past summer. WMUR reported “a lawyer for Gross-Santos is asking the court to consider what is known as restorative justice, under which he would apologize to the victims instead of serving jail time.” WMUR’s article further characterized the accused’s attorney, Andrew Cotrupi, as “asking the court to consider a program that has never been used in Rockingham County.” A fairly typical online comment-thread debate ensued.
But Cotrupi later told Seacoastonline of his client, “No part of what he’s doing is that [i.e., proposing an apology as the end of legal proceedings]. Everyone sees a nefarious motive in all of that. That’s fine. That’s where we are in the world. You try to immediately apologize and you’re not allowed (by the court), and if you don’t you’re criticized.” There is often a mob mentality to crime and punishment, so police officer, prosecutor, judge, and governor discretion is a challenging power to wield. Overburdened courts also often impose de facto lose-lose gag orders when they don’t host speedy trials.
New Hampshire’s 523-page Law Enforcement Manual, in its fifth edition by the state Attorney General’s Office, includes the word “parent” twice and “father” once. Designed, per its preface, “to directly benefit law enforcement officers as they carry out their patrol and investigatory duties,” the manual is near oblivious to traditional legal and moral authority for minors. Traditional and new social structures and strategies, including expanded “harm reduction,” will save lives and better people. New Hampshire may end the year with double the heroin overdose deaths of last year. Necessity is the mother of invention, and responding to this public emergency will require mothers, fathers, and more.
Is the system broken? “The system” is really a matrix of governments and government agencies, private for-profit and nonprofit organizations, and individuals, families, and kinship networks. That it is a patchwork is more of a blessing than a bane. Positively, it means that government structural improvements, supplements, and innovations are possible in a variety of manifests. “Changing the culture” is not only possible, it is a constant. Change is always happening, even when it feels like hope has waned. There are so many moving parts and people to society that there isn’t much that’s productive about describing or decrying a general status quo. Instead, private citizens and public officials ought to 1) celebrate local victories and heroes, 2) propose simple, popular, common-sense win-wins when they present themselves, 3) research and develop cost-effective, evidence-based solutions, and 4) pick good fights to fight to educate young change-agents-to-be, embolden existing silent majorities, and model loving justice for anyone who might be watching.
(Robert L. Ehrlich, Jr. is senior counsel in King & Spalding’s Government Advocacy and Public Policy practice group. He served as Governor of Maryland from 2003-2007 and previously in Congress and the Maryland General Assembly. Alex Talcott is a Faculty Team Lead for Criminal Justice at Southern New Hampshire University, where he also teaches business law.)