A
CRIMINOLOGIST'S QUEST FOR PEACE
Hal
Pepinsky
_____________________________
Chapter
5
TRANSCENDING
LITERATYRANNY
A
NOTE ON METHOD
Mutually
empathic, democratic processes for building community
are not just ways for people to get along safely together. They
are the processes by which participants learn most. They
are the processes I have used to do my –research” and –teaching” as
a criminologist.
I
cite many people by name in this essay. Most
of them have not published or have scarcely even written
academically at all. I
invite readers to consider whether they feel it is
inappropriate to cite people without published references
this way. To
me, the practice of citing published authors by name
in social science texts elevates what they say about
their research "subjects" above what the "subjects" have
to say about themselves.
I
blush to admit that I myself often pick up texts and
turn to the references to see whether I am cited. Citation
by name in print offers special honor and recognition
to our experience (our "data") and our interpretation
of it. My
naming of so many unpublished sources in this essay
is a conscious attempt to transcend what I call "literatyranny," the
tyranny of written interpretations of people's problems
and what needs to be done for or to people. Perhaps, in the name of balancing our conversations about
violence, we might adopt a practice of crediting oral
sources alongside our citations to published sources.
In
that spirit, I also want to preface this exploration
of literatyranny and its remedies by dedicating this
article to my spiritual guide and friend, Mable Linder,
who has become honorary grandmother to the feminist
justice seminar I describe, and who has taught me as
much as any single human being about how those who
have been horrifically violated from childhood into
adulthood can with honesty and compassion, and a modicum
of validation and support, heal and generously enrich others' lives.
LITERATYRANNY
AS STRUCTURAL VIOLENCE
Literacy
literally means "capable of using letters." I
share Sullivan and Tifft's (1998) and Iadicola and
Shupe's (1998) conviction that structural inequality
is every human being's social enemy. I
see command of our use of letters as a structure in
which writers' depictions of others' lives become privileged
over what those others know, feel, and say. My
own field of criminology or criminal justice is dominated
by the written view that the most dangerous offenders
as a rule are young people, especially poor young men
of color, or when it comes to child neglect and abuse,
poor young welfare mothers and the men they bring home. Our
law enforcement is aimed in that direction. Meanwhile,
what I hear from two groups of people who are especially
vulnerable to personal violence-prisoners and children-and
from those who know them well leads me to a strikingly
different picture of where the primary threat of personal
violence lies.
I
went through law school with the desire to be a Clarence
Darrow (1957)--an advocate for the downtrodden. "Empirically," that
is through many sad experiences, I have found myself
helping others resist legal process more than using
it for protection of anyone's human rights. My
participatory research has carried me to become best
acquainted--personally and in assessment of evidence--with
two classes of persons whom I consider to be our ultimate
victims: prisoners
and children.
We "free" adults
do not give either class much credit for being able
to write or speak the truth about being violated, but
much is written about them. In
fact, protypically, criminology and criminal justice
are the study of what is wrong with children and criminals
like those in prison, and of how to treat them differently
from ourselves. As
many of my students say and write, "Prisoners have
no rights. They
lost all their rights when they broke the law." And
children don't know what's good for them (Miller 1990
[1983]). As
Regoli and Hewitt (1994) put it, children at home and
as prisoners are "differentially oppressed." But my oh my is there a vast, historically rich literature
on how to tame personal violence by teaching children
and prisoners to behave.
Patterns
of personal violence can only be reinforced when prototypic
victims are treated as prototypic offenders. The
structure by which written texts on crime and criminality
depict the danger of personal violence locks those
at greatest risk into perpetual victimization. Inasmuch
as all of us have a legacy of having belonged to one
of these classes, having all been children, this structure
has re-victimized us all. Literatyranny-the
privilege of the written word about crime and violence--is
a structure which increases the vulnerability of all
of us to personal violence.
It
is a challenge to translate awareness of structural
inequality into personal initiative. You
and I need to be able to do something with our literature
and other empirical data (i.e., experience as we and
others have lived it) for knowledge of structural inequality
to signify more than our failure and vulnerability. As
I see it, if one discovers the tyranny inherent in
our literature on children and prisoners, our remedy
lies in hearing and amplifying into public discourse
the otherwise unwritten voices of the oppressed. This
is much what Freire (1970) proposed to accomplish by
teaching Brazilian peasants to write and read. There
is much to be said for bringing voices of the oppressed
into literature. Beyond
that, I think subversion of the tyranny of literature--what
I call "literatyranny" or "tyranny of the letter"--lies
in listening and watching what members of oppressed
groups do and say, and allowing ourselves to become
as informed by it as we are by literature (Pepinsky
1995, 1997). This is essentially what Yazzie (1998) and others describe
as the objective of Navajo "peacemaker courts"--circles
where conversation over human discord or imbalance
is re-balanced. Discourse
theorists like Wagner-Pacifici (1994) analyze conversations
in conflict situations--in this case participants'
responses to the police assault on MOVE headquarters
in Philadelphia, identifying violence and oppression
as emanating from imbalances in having one's point
of view and interests represented in other people's
conversations. Radical
feminists like Brock-Utne (1989) describe monopoly
of conversational and play space as structural violence
itself. And
so it seems to me that the obvious remedy for oppression
of prisoners and children lies in inviting them into
my own conversational space, including the classes
I teach and the "scholarship" I "produce." I
call that "transcending literatyranny" and invite other
students of crime and criminality to join this way
of learning.
PRISONERS
As
I began teaching in the winter of 1971 in Minneapolis,
Minnesota, I had no theoretical understanding of a
need to balance conversations about victimization. As
though by spontaneous spiritual reflex I sought to
take advantage of a course offering I had found on
the sociology department books: 5 credits for enrolling
in a seminar and teaching what would now be called
a "discussion section" of a big class. I
put out word through the student grapevine that in
the spring quarter, I wanted volunteers to give me
paragraphs describing "projects" they hoped to lead
class groups in conducting. A
highly articulate young woman who turned out to be
a doctoral student in English approached me at the
end of a class. "My
husband will be getting out of prison this week. He
would like to volunteer to lead a group." I
embraced the chance. As
Nixon's drug war was underway, another project leader
was a heroin addict on methadone maintenance, and on
the lecture and radio circuit, also an ex-prisoner. These
project leaders worked hard and offered students a
wonderful education, including field trips.
The
husband, Alfred C. Villaume, now offering para-legal
services to prisoners, later wrote a paper on"Parkinson's
Law and the Federal Bureau of Prisons" which was published
in Contemporary Crises--an international criminological
journal--and helped earn him a master's degree from
Antioch by mail. Fred
is the only person from my Minnesota days with whom
I maintain steady contact.
Fred
led me onto a path
of learning most about our prisons from our prisoners. Among
prisoners, odds favored my corresponding with those
who were more at ease writing. I
have several steady pen pals in prison to this day. I
have also tended to hear from and respond to prisoners
who were outspoken on behalf of others as well as of
themselves. One
was a prisoner in Ohio due for release just before
the Fifth International Conference on Penal Abolition
(MacLean and Pepinsky 1993) which I was organizing
to be held in my hometown in May 1991. Native
North American spokespersons from the third conference
in Montreal in 1987 had recommended that Little Rock
Reed organize sessions. He
did so beautifully but was still in prison when the
conference was held--his parole continued, the written
reason for keeping him in prison for at least an extra
year being that Rock A...talks about his constitutional
rights..." Rock,
you see, had tried to revise his parole agreement to
make it constitutional.
I
had just become inactive in the one state bar I had,
nominally, belonged to--Ohio. There
was not a lot I felt I could do to help Rock. I
thought the law was pretty clear that he could not
have parole rescinded on grounds that he talked about
his rights. I
spent disappointing time on the phone with Ohio lawyers,
including a representative of the Ohio Civil Liberties
Union. Rock's,
I was told, was a lost cause. To
make matters worse, he had helped a small black man
who had been forced into a cell with a big white supremacist
who vowed to kill him file suit on behalf of this forced "integration" of
the Ohio prison in Lucasville. I
ended up writing a one-page letter to the court in
which Rock had filed for habeas corpus pro se--on
his eloquent own. I
headed the letter "Amicus Curiae Brief," noting my
inactive legal status, and signed as a criminal justice
professor. The
state did not respond to Rock's petition, and an appellate
court ruled that Rock would have standing to raise
this issue when he had served his full sentence--that
is in 15 more years. Rock
signed the defective petition and was released shortly
thereafter. He
tells me that my letter was what persuaded the Ohio
parole board to let him go. If
that is the case, then something any outsider with
a status like "professor" could have accomplished (you don't have to be a lawyer to
head a letter "amicus curiae" and send it to a judge)
with a one-page statement means more than the rule
of law. Experience
repeatedly reinforces to me that a simple, succinct
amplification of voices of people being victimized
can significantly free them. To
believe that change like this is significant structurally
as I do, you have to accept the premise that what happens
to one victim matters to all who might become victims.
Rock
had been working to produce a book of writings by Native
American prisoners, centering on their non-violent
struggles to exercise religions of First Peoples. I
continue to use portions of that book (Reed 1993) in
a class I teach on "alternative social control
systems." By
the time the book appeared, Rock was a fugitive from
the Ohio Parole Authority, having refused to appear
as ordered at his parole officer's office in March
1993, six weeks before his parole was due to end. The
F.B.I. was relentless in trying to track him down. He
was arrested by the sheriff in Taos, New Mexico, in
the fall of 1994, after the book had been published. The
New Mexico governor delayed some but then signed off
on an extradition order from the Ohio governor as a
matter of course. Rock
filed a petition to be released in New Mexico, a petition
for habeas corpus, before Taos County District
Court Judge Peggy Nelson, who allowed Rock to offer
six days of testimony, much of that while he himself
was on the witness stand, while the prosecutor stood
mute on grounds that anything Rock had to say was immaterial. I
was the concluding witness, by telephone. Examination
on my affidavit about what I knew of Rock's case--particularly
of my conversation with his parole officer the day
before he was due to appear--lasted just fifteen minutes,
with no cross-examination.
In
January 1995 that judge issued an 18-page, closely
reasoned order that Rock be released because he was
being sought to shut up his defense of prisoners' rights,
and had committed no other offense for which he could
be deemed a true "fugitive." The
New Mexico Supreme Court conducted oral arguments on
an appeal by the New Mexico Attorney General in February
1996. While
he waited for a ruling, Rock was rearrested in Albuquerque
on grounds that a habeas corpus order from Taos
did not apply outside that county. Rock
found a lawyer, for whom he now does paralegal work,
who got him released once more.
On
September 9, 1997, the New Mexico Supreme Court issued
35-page decision (Reed v. State, 1997 West Law
671786). Three
justices, with one dissenting and one concurring, upheld
the habeas corpus order. The
majority found (at p. 19):
Reed
has shown beyond a reasonable doubt, with persuasive
and uncontroverted evidence, that he left Ohio because
he risked death or great bodily injury at the hands
of prison officials if he had reported to be arrested
by his parole officer. Reed
was not threatened with the deprivation of any ordinary
civil right-not merely liberty or freedom of speech-but
with the deprivation of life itself. There
is no right more fundamental than the right to one's
own life.
The
majority found that while extradition requests for "fugitives
from justice" should be honored as a matter of course,
Rock had demonstrated that he was a "fugitive from injustice."
This
is the only case I know of in which a governor has
signed off to send a prisoner back to another state
and a court has stopped the extradition thereafter. The
dissenting justice is afraid that this ruling will
lead hordes of other "fugitives" to seek legal refuge
in New Mexico.
Among
other evidence of the danger Rock faced, the court
notes my testimony that another Native American jailhouse
lawyer, Dennis Weaver, died without explanation in
the riot in the Lucasville prison where Rock would
have been a month later, in April 1993, where Rock
would have been once more had he shown up at the office. The
court quotes the account in my affidavit of how the
parole officer confirmed to me by telephone, the day
before he was supposed to surrender, that upon surrender
Rock would be denied his constitutional rights to a
hearing on whether his parole should be revoked (at
p. 5). All
I had thought I was doing when I called the parole
officer was trying to communicate orally over saving
a friend's life or limb. The "affidavit" was
simply a memo of the conversation I wrote and had notarized. Essentially,
what I in retrospect contributed to a piece of literature
that against all odds recognized a prisoner's right
to sanctuary from an entire state's violence was to
bear public witness to what I had learned orally, guided
by someone I counted among ultimate victims of personal
violence.
The
New Mexico Attorney General appealed to the U.S. Supreme
Court. On June 8, 1998, in New Mexico ex. rel Ortiz v. Reed,
524 U.S. 151, 118 S.Ct. 1860, 141 L.Ed.2d 131, the
U.S. Supreme Court as a body (–per curiam”) overruled
the New Mexico Supreme Court and ordered Little Rock
extradited to Ohio. The
Court acknowledged that imminent danger to Little Rockęs
life from Ohio authorities had been demonstrated beyond
a reasonable doubt, but said that the New Mexico courts
had exceeded their jurisdiction inquiring into the
issue. Little
Rock surrendered to Ohio authorities that fall, and
was ordered to serve out the remaining six weeks of
his parole. He
completed that parole and was released from Ohio custody
in February 1999. He returned to New Mexico. Tragically,
he died there in a car crash in January 2000. I
consider him my brother. I
miss him.
It
would be absurd to try to repeat history--to aim to
become a manifest part of legal human rights history
again. But
I will say that letting oneself bear witness to the
voices of prisoners and children invites a Walter Mitty
series of bits of history one does not find in the
literature. Victims
are validated. They
do as some who have been victimized say become "survivors," recognizing
that they did not deserve the violence they suffered,
finding people among whom they could live openly and
safely. And
on rare occasions, as here, what one hears when one
listens to the plight of ultimate victims may gain
the status of written "fact" for a moment at least. I
am also given pause by the price whistle-blowers like
Little Rock pay, and humbled by the realization that
vindication of the oppressed may be ambiguous at best.
The
non-violent voices of prisoners have grown more poignant
to me in the years since I became involved with Rock's
case. The
last time I wrote for use in court on behalf of "new
evidence" I saw was in the case of a young man, Jason
Matthews, doing a murder sentence in South Carolina
for what to me appears to have been self-defense against
a sheriff. Against
all odds, Mr. Matthews prepared a powerful enough appeal
on his own behalf that the entire U.S. Court of Appeals
considered it en banc...before he lost the appeal. That
case has been vividly described and well analyzed in
a psychology doctoral dissertation (Derrick 1995). I
am now discouraged enough by the prospects to refrain
from researching and writing on such issues for prisoners. Nor
do I encourage correspondents seeking to have their
sentences modified, let alone their convictions overturned. My
stock response to prisoners who write me is to say
that I will be happy to be a pen pal, but that there
is little else I will offer. Some
get mad, some respond warmly. One
prisoner whom I have long since befriended and supported
for parole is Lorenzo Stone-Bey, who used to be in
the cellhouse at the Indiana State Prison in Michigan
City reserved for "administrative segregation" of prisoners
thought to put guards or other prisoners in danger. Lorenzo
has shared with me petitions for relief from the segregation
of African-American prisoners there, including those
like Lorenzo who are outspoken on behalf of religious
rights (Lorenzo's being Moorish Islam). Lorenzo
understands when I say that no, I will not get into
this or that legal battle. I
have however consistently told Lorenzo that I would
share his news from prison in my home state, particularly
with my students.
Just
as I was thinking how to write this article, the following
arrived from D-cellhouse at the Indiana State Prison
(Lorenzo has been transferred). I
have read this petition in class and circulated it
verbatim, with signatures listed, on internet with
the permission of its authors. I
have read and shared the petition at a national criminology
meeting. At my request, a local newspaper, The Bloomington Voice,
printed the entire text (in its December 11-18, 1997,
edition). I
reprint it here with permission of its authors. I
have left the entirely unedited to make a point about
literatyranny: Even petitions to courts by jailhouse
lawyers who can spell get dismissed routinely. The
prisoners who sent me this "petition" do not have
access to a dictionary. For
them, writing is a struggle. The
spelling, together with the handwritten signatures,
with different writing instruments like for instance
a red pencil for two or three cells running, bears
testimony to the effort that went into this form of "expression." It would be a mistake to dismiss the value of what is said
on grounds that it is "illiterate"; spelling problems
aside, the description of the petitioners' plight is
clear and cogent. But
what touched me most of all was the modesty of the
request with which they conclude their petition, which
I received in November 1997:
Mr.
Pepinsky,
We,
the under signed, have came together, in this petition,
in an attempt to raise awareness and gain the support
of a reputable citizen; in our quest to make right,
the many wrongs perpetuated against the D-cellhouse
offenders.
D-cellhouse
is a unit supposedly designed to house the violent
and unrulely, but in actuality I.S.P. [Indiana State
Prison] only has a handful who will fit that description,
and I.S.P. has no gang problem, to speak of.
This
cellhouse, as a preditor unit, is a failure, so the
administration is forced to "create" situations and
security concerns inoder to keep a sufficient number
of offenders classified as preditors, gang bangers,
etc. Then
subsequently there are minor "individual" incidents
which are over emphasized to create the illusion of
a need for such a unit. When
these "individual" incidents occur, the administration
here [must] make the most of it, because there are
no "organized" or "group" incidents that can be "held-up" as
examples of why a preditor unit is needed here at ISP. And
as a result the D-cellhouse offenders suffer unjustifiablly.
The
DCH offenders are constantly placed on lock down status
[to create that illusion of unruliness] and denied
basic constitutionally protected rights. We
have been on lock down [continuencly] for about (2)
two months, with only (1) one break. We
were allowed to walk to the dining hall for a hot meal,
and we have not received anyother [hot meal] in violation
of court mandates.
We
have no "actual" access to the law library, or the
research clerks, to assist us in knowing"what" to request
the law library [workers] bring us.
We
receive (1) one shower, once weekly, two (2) cold"sacks" daily,
and not much more.
These
lock-downs are "vengeful" and not motivated by any
security concerns. The
incidents are "individual" in nature, and once the
actual participants are identified and segragated,
what then be-comes the purpose for the continued lock-down?
It
is vengful rehetrobution, plain and simple, and "creates" real hostility
between prisoners, and staff. The "policies" practiced
in this prison, in DCH is in violation and opposition
to the policy (generally) advocated by The I.D.O.C.
[Indiana Department of Correction] and actually fosters
the very behavior it's designed to quash.
We
believe that if the practice's and policy of DCH were
placed under public scrutiny, some changes would be
made.
With
that hope we have decided to petition you, hopeful
that you will mention our concerns amongst your peers,
and hopefully they will come to the attention of some
who care enough to do something about it.
--Sincerely--
TO:
All Concerned, Eastside D-Cellhouse
Reason:
Letter to Professor, Hal Pepinsky
Prisoners/Convict
Name D.O.C.
#
104 Brown 855988 258 Huspon 882533
106 Hall 931011 260 Douglas
Barger 873860
108 Sauer 890675 262 John
J. Giforth 904895
110 Price 914600 264 Charles
Smith 933202
112 266 Marc
Tillman 940972
114 Bishop 900114 268 Rico
L Barnes 943602
116 304
118 Harry
Sules 963920 306
120 308 Jeff
Treadway 942643
122 Eleazar
DelaSerna 961267 310 Darris
Crain 2165
124 312 Hayes 893905
126 T.
Crawford 9865527 314 Pinkston 922016
128 B.
Dolson 316 Stephen
Brown 32313
130 318 Christopher
Butler 872035
132 320 A
R. Ali 922874
134 R.
Cessell 884326 322 Robertson 887464
136 Hodge 870663 324 Omar
Clifton 29183
138 326 Mark
Wilson 926668
140 Clemmons 913185 328
142 Westerhoff 922583 330 Foulks 893097
144 Atkins 977793 332 A.
Thompson 956287
146 334
148 White 852537 336 MA
Malone 913752
150 William
Tubbs 880132 338 N.H.J.
Strong 910004
152 340 William
Howard 7940
154 David
R. Shile 955388 342 JB 902838
156 T.
Walker Sr. 2348 344 Carter 923126
158 Patterson 952620 346 Piggie 884810
160 Ingram 873014 348 R.
Redin 890268
162 Jones 17776 350
164 Majors 863393 352 Yaro
Aziz Bey 943546
166 Jones 942813 354 Bruce
Chip Rettelle 973552
168 356 J.R.
Tennell 925943
204 Martin 864153 358
206 Kelly 863772 360
208 David
Mack 880905 362 Charles
Recariom 930667
210 Michael
Broyles 935706 364
212 S.
Barba 910432 366 Steven
Bethel 863706
214 JC
Smith 875219 368 Terry
Joyer 915405
216 404 C.
Stoudimise 902813
218 James
Cuthbert 905624 406 R.
McGawan 880885
220 Evan
West 891917 408 L
Cooley
222 410
224 412 Splunge
B.C. 865336
226 Cain 405580 414
228 Monerd 851251 416 Elijah
Gayden 957136
230 Jermall
Williams 963008 418 Stanley
Kyles 922712
232 420
234 Banks 856869 422 Steve
Crow 930160
236 Johnson 955493 424 James
Lipps 961112
238 Williams 955868 426
240 Sparks 862124 428
242 Ellis 870343 430 Meriweather 864570
244 Williams 962783 432 Koenig
246 Mosky 953037 434 L.
Davenport
248 Roger
A. Smith 6274 436 Dan
McCarthy 853570
250 Eric
Oliver 931295 438 Nathan
Smith 925779
252 440 Taylor 946781
254 442 Dixon 885107
256 Woods 944866 444 T.V.
Smith 854951
446 Hielema 902882 524
448 W.
Childers 900090 526
450 528
452 Huspon
II 933279 530
454 532
456 Bill
Corn 884316 534
458 McDonald 871269 536
460 Thomas
Bey 851326 538 Matthews 854025
462 T.
Smith 923970 540
464 M
. Barnes 892557 542
466 David
? 962708 544 Mounts 912721
468 Lloyd
Higgins 950223 546 Hofherr 904257
504 C.
Baney 918815 548 Munoz 912827
506 550 Burton 890681
508 552
510 554
512 556 Michael
Klein 951619
514 558 Theoplis
Ward 905611
516 560 Larry
Fuller 883194
518 562 Cliff
Dailey 860800
520 564
522 566 Jared
McReynolds 24096
568 H.
Swanbreig 883637
E-406 Bennett #3612 I'm
in 406!!!
I
foresee no legal redress in this case either, but I
do foresee that insofar as my colleagues in the criminology
trade let prisoners speak to them and listen, they
will become part of a cultural shift away from punitiveness. Time and again I am struck by the forbearance of my prisoner
friends who know that no personal struggle to be heard
may be officially won, but that being heard anywhere
matters. I
would propose that we criminologists follow one another's
lead into getting to know some prisoners personally,
to de-commodify (Iadicola 1997) what Christie (1994)
calls "the crime control industry."
RESTORATIVE
JUSTICE
I
struggle to address our punitiveness as manifested
in the conviction of many of my students like others
that "prisoners have no rights." As
Christie (1994) and others argue, politicians and crime
control merchants (with media help, Mathiessen
2000) sell the idea that prisoners and their kind (prototypically
poor young people of color) stand between us and living
safely and securely in harmony and community. The
question arises how to appeal for compassion in place
of punitiveness.
"Restorative
justice" is being heralded worldwide these days as
a revolutionary alternative to prosecution and punishment
of criminal offenders (see a comprehensive survey of
restorative justice initiatives and views in Galaway
and Hudson 1996). A variety of mechanisms is used to lend victims control over
repairing the damage that crimes have done, and to
draw offenders into respected, responsible places in
social life, rather than stigmatizing offenders and
separating them from communities as happens with criminal
justice sanctions like incarceration. The
mechanisms include victim-offender mediation; group
conferences in which victims and offenders bring their
family and supporters to a discussion of what harm
has been done and how victim and offender can both
be healed and "restored" to valued places in the community;
and peacemaking circles or courts modeled on aboriginal
methods of responding to conflict. It
is indeed heartening to see people broadening dialogue
over crime and violence, and building alternatives
to punitive "justice." However, the process glosses over what to me is the root problem
with our response to violence: that
we restrict ourselves to conventional designations
of who offenders are.
The
point was driven home to me as I was reading a recent
and in many ways wonderful guide to developing"community
peacemaking circles" in Canada, written by a Yukon
judge who has encouraged people in aboriginal communities
in particular to fall back on non-adjudicatory traditions
of conflict resolution. There
I found a proviso standard in restorative justice initiatives. It was just a brief "comment" in the middle of an extended
text:
Crown
and Defence should agree in advance to the factual
foundation for the [defendant's guilty] plea . Any
differences can be determined in court and the results
read into the Circle. A
failure to resolve these matters in advance can be
extremely disruptive to the momentum and focus of the
circle (Stuart 1997: 73).
Restorative
justice will not work unless parties have agreed on
the facts of the dispute in advance, including whom
to identify as "offender" and "victim." It has long been acknowledged in my part of the world that
ninety percent or more of criminal convictions rest
on guilty pleas. Judges
go through an extended ritual of asking defendants
whether, without fear or favor, they freely acknowledge
that they have done each element of crimes charged. Defendants
routinely say, "Yes, your honor," and express remorse
as they "accept responsibility" for their offenses. Whether
by prearranged bargain or as a matter of judicial custom,
the"deal" is that sentences will be moderated in recognition
of defendants' contrition. Essentially,
then, restorative justice proceedings become a substitute
for (or supplement to) sentencing hearings in conventional
criminal prosecutions. The common wisdom, too, is that restorative justice works
best with youthful offenders-the group who conventionally
are seen as posing the greatest threat of social disruption
and personal violence in our communities. Beyond what it does for victims, restorative justice becomes
a new way to turn young offenders' lives around. All
in all, restorative justice supports and reinforces
stereotypes as to who typical criminals are, as a price
of offering criminals new avenues to redemption.
I
look for ways to draw these stereotypes into question. I
dwell in cases in which victimization is socially unrecognized
because recognition would defy stereotypes. Little
Rock Reed's case is extraordinary because-as the dissenting
New Mexico Supreme Court justice observes-states are
careful to refrain from deciding that prison keepers
pose greater danger of unlawful violence to their wards
than prisoners and parolees pose themselves-that "offenders" are "victims" and
states are "offenders." The stereotype amounts to a license to powerholders-prison
keepers-to do more violence to prisoners than prisoners
could possibly manage in return.
CHILDREN
It
is reported often that restorative justice sanctions
turn out to be more onerous than criminal sanctions
would have been instead. The
corresponding hope and often reality is that anger
softens into compassion and support for victims and
offenders alike. But
by operating on stereotypic operating definitions of
who offenders are, restorative justice remains locked
in channeling our anger and fear over being violated
into "p.c."-politically convenient-"offenders."
In
effect, restorative justice opens another channel in
which to vent unresolved fear and anger in socially
accepted directions. It
is a marvel that"crime" is, like the weather, so popular
a topic of cocktail party discussion. For
all the passion that can be invested in conversations
about crime, especially violent crime, the marvel is
that the passionate people seldom know the offenders
and victims they are discussing. How
alienating. I
have a working hypothesis, borne out by what I have
gotten to know of myself and of others: Much
of the punitiveness we feel for "offenders" is anger
and lingering fear over having been violated when we
were small, by those in whose care we were entrusted,
in what Freyd (1996) calls "betrayal trauma." Betrayal
trauma can occur by action or inaction that is perfectly
legal, physical or emotional. To
Freyd, the trauma entails pretending nothing bad has
happened when someone you love, whom your very life
seems to depend upon, has hurt and frightened you. I
think that punitiveness arises simply, as Miller (1990
[1983]) puts it, by "poisonous pedagogy." Learning
to feel and live the reality that you feel, see and
hear what others tell you that you must. The
poisonous teaching is that living someone else's reality
is "for your own good." Herein lies the kernel of learning to live a lie, of distrust,
of anger and fear over having oneself denied or "really" worthless,
of feeling as though one is an impostor at earning
others' respect and care. Much
as I distrust crime counting, I would only add that
I see plenty of hidden rape, and at the extreme, organized
serial murder and torture-mostly invisible in public
discourse. The
more those who have been victimized open up to me,
the more I strongly I suppose that when we are punitive
we are truly scared and angry based on real personal
experience, but can only acknowledge that those who
hurt and scare us are "wonderful" and "have been good
to me," and are allowed only to vent our anger at p.c.
offenders.
Conversely,
my experience is that the younger and sooner those
who are victimized by personal violence are heard,
validated, and even moderately protected, the more
readily they vent anger and fear as they occur, and
less they care about doing anything TO their offenders. They
of course remain concerned that they not be re-violated,
but determination to get help to protect and defend
oneself does not necessarily imply anger and a desire
for retribution. And
so I look to listening to victimization, of children
particularly, and offering what safe and validating
company we can in its place as the more direct channel
to handling our punitiveness. This
extends to availing ourselves of opportunity safely
to share our own betrayal trauma.
We
hear constant concern about threats posed by youth. We
grant certain adults extraordinary
