Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.

In 2001, still in practice as a reservist for the Israeli Military Defense Counsel’s office, I represented an inmate who was serving a life sentence for murder. Four years earlier, he had shot another soldier to death over a dispute about using the public phone. My client wanted help with a petition to the President of Israel. Under Israeli law, all life sentences are not truly for life; it is the President’s prerogative (a relic from colonial days, when the British Governor held the equivalent position) to determine how many years “life” would be.

As we put together the documentation for the petition, we also discussed my client’s desire to meet the victim’s family and express his remorse for what he had done. He wanted to ask for their apology. I was doubtful that we would succeed, but made some phone calls to the Ministry of Justice. At the time, restorative justice was a nascent field in Israel, and the people I talked to were reluctant to take on this project. They had not tried restorative justice in serious offenses such as murder, and in light of the victim’s family’s position during the trial (they were, understandably, very upset and very hostile toward my client) did not believe that the family would want to hear from my client, let alone be in the same room with him.

I left the country shortly after handling the case, but often wondered over the years what happened to my client. We recently got in touch again and I was glad to hear that he was doing well in prison, working and studying, and making plans for his release.

This is why yesterday’s New York Times story about restorative justice moved me very deeply. It is a story from Florida about a restorative justice meeting between the family of Ann Grosmaire, who was murdered by her boyfriend, and Conor McBride, the man who took her life after a long argument. The article is worth reading in full, because it vividly tells the story from the perspectives of the different parties that took part in the process: Ann’s parents, Conor’s parents, Sujatha Baliga, the facilitator and a former public defender from Oakland, and the prosecutor, Jack Campbell. The pain of the victim’s family is indescribable; the depths of their forgiveness – granted for themselves as well as for him – incredible. I can’t recommend it enough.

One of the major challenges on the road to accepting restorative justice as a legitimate and important step in the criminal justice is the victim’s contribution to the outcome. After all, two murderers can end up receiving very different sentences, depending on their victim’s family’s feelings on the subject. Is that fair? Perhaps not from the traditional criminal justice stance. But it is easier to accept such an outcome if one thinks of a murder as something that happens in a certain context, a certain relationship between the murderer and the victim and the people in their lives. As such, the murder “belongs” not only to its perpetrator, but also to those who suffer the ramifications. Nils Christie’s classic article Conflicts as Property advocates returning the conflict to the victim and minimizing the role of “conflict thieves” – lawyers, judges, system actors – in its resolution.

This is why it was important, in the Prop 34 campaign, to remind all of us that not all victims are punitive and not all of them believe in the death penalty. This nuanced L.A. Times story shows that different victims responded differently to the prospect of applying the death penalty. Respect for victims means not treating all of them, cookie-cutter style, automatically as staunch supporters of the prosecution, but rather giving them the space to say what they want from the process and how they choose to engage with what happened to them.

Props to Sal Giambona and David Takacs for alerting me to the article.

Kentucky reforming drug sentences (?!)

So apparently the state of Kentucky is debating legislation to reduce prison sentences and increase diversion for drug convictions. Today’s Lexington Herald-Leader has a detailed, well-written, very informative article about the bill, which was presented Tuesday by members of a special drug-specific sentencing committee called the Task Force on the Penal Code and Controlled Substances Act. Please read the whole thing here, but my favorite passage is:

“The bill would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all.”

David Onek for SF DA?

Now that Kamala Harris is officially moving up from SF District Attorney to CA Attorney General, there will be a hotly contested election for a new District Attorney here in San Francisco in November 2011. One leading candidate is David Onek, a former member of the SF Police Commission; see

In a post on Calitics last month stumping for Kamala Harris, Mr. Onek embraced the humonetarian view of criminal justice, leading with financial statistics about the expense of recidivism. Onek applauds Harris’s Smart on Crime approach, and in particular the Back on Track program. Overall, the post suggests Onek supports more money for prevention, intervention, and rehabilitation, and less money for useless re-incarceration. Tellingly, Onek’s candidacy for SF DA was recently endorsed by Jeanne Woodford, the reform-minded former director of CDCR who supported Prop 5 in 2008.

Facebook users have the opportunity to support David Onek’s campaign for DA by clicking “Like” at

Drug Court Humonetarianism

Reuters has a fascinating article here on drug courts, empathy, and the monetization of humanitarianism. The author discusses shifting economic priorities in the war on drugs.

Contextually, it begins with Judge Gorsalitz’s drug court in Kalamazoo, MI. The writer’s title, “America’s new touchy-feely war on drugs,” and tone suggest amusement or even contempt for the drug-court approach, but then the litany of drug war harms and legalization benefits belies a different understanding.

The piece favors Judge Aim’s Project Hope in Hawaii, which saves money by making drug treatment voluntary not mandatory, and uses penalties of short jail stays instead of reinstating full sentences. Of course, here in the City&County of SF we have Judge Albers’s Community Justice Center — for its drug court context see Prof. Aviram’s post here.

Community Justice Center Picks Up

We now take a break from the State’s budget woes – though not entirely, as you’ll see – to report on the news at the San Francisco Community Justice Center.

A quick bit of background: as some frequent readers may recall, the Community Justice Center was formed to address misdemeanors and non-violent felonies committed in the Tenderloin area. Its beginnings were difficult, with politically-charged budget struggles and a high percentage of non-appearances; it later received some publicity due to the personal appearance of the SF Public Defender, who was trying to make a point about budget difficulties.

Recently, the court has been getting some media attention. The Examiner reported on the Public Defender’s Office’s objections to the court, which included, as it turns out, the argument that many of the services it offers duplicate services available elsewhere.

“Other than being able to sign up for [social security insurance] and in some cases get shelter, the services at the CJC were essentially the same type of outcomes as at the Hall of Justice,” said Adachi, who has tried to pull his staff out of the center, which he views as a waste of scant public resources. “This court was set up to provide different outcomes than what would happen at the Hall of Justice.”

A study commissioned by Adachi’s office found that 90 percent of justice center clients — the percentage served by a public defender — were found to be eligible for drug court and several other drug diversion programs already in place.

Much of the study, which was prepared by UC Berkeley Ph.D. candidate Melissa Sills using public defender data from March to June of this year, is disputed by the justice center. Measuring duplication of services requires further analysis, said the center’s coordinator, Tomiquia Moss.

Nathan Ballard, a spokesman for Mayor Gavin Newsom, also disagreed with Adachi.

“He’s wrong,” Ballard said. “A similar program transformed Midtown Manhattan in the 1990s and we need to give it a chance to succeed here in San Francisco.”

Statistics from both the CJC and the Public Defender’s Office show that about 55 percent of cases handled by the justice center are dismissed. But supporters say that even in those cases, people are referred to critically needed services. About 55 percent of offenders showed up to court in the first four months, compared to 25 percent at the Hall of Justice, according to CJC data.

That attendance rate is steadily improving, and is currently at more than 60 percent, Albers said.

At the Chron, C.V. Nevius, whose previous pieces on the subject were quite supportive of the court, offers sharp criticism of Adachi’s objection, arguing against his disappearance from the scene precisely when the court is starting to show promise.

It took five months, but the CJC is finally making progress.

Now where is Jeff Adachi? The public defender complained that defendants at the Tenderloin court never showed, and that the court was a waste of time and resources. But now that it is seeing results, Adachi’s office is AWOL.

“If I had the staff, I would definitely staff it,” Adachi said. “Certainly these are cases our office would handle if they were filed in the Hall of Justice, but we barely have enough staff to cover the Hall.”

Look, either you’re the public defender or you’re not. Your mandate is to fulfill every citizen’s right to legal representation – not every defendant whose case is heard in the building where your offices are located.

Frankly, exasperation is building.

“What are our over 400 clients supposed to do?” asked CJC coordinator Tomiquia Moss. “At what point do the numbers become important enough to be worth a lawyer’s time?”

The lack of PD jobs is affecting the system in a variety of ways and exacerbating the existing pathologies (not to mention leaving quite a number of newly minted lawyers, who have a huge potential to be phenomenal public defenders, with no position to apply for). I understand the need not to stretch defense resources too thin to the point that quality of representation decreases. A decline in quality would be what we called elsewhere “the dark side of Gideon”. Nevertheless, it is disappointing to see an important venture, which emerged from a holistic perspective aimed at solving problems from the root, go unsupported by the very people who should be sensitive to openminded solutions to street crime in the Tenderloin. What do you think?

Community Justice Center Budget Killed

This little morsel of information is hidden somewhere in the middle of this Chron piece about the San Francisco budget crisis:

Arguing that they cannot start new programs when existing services are being cut, a majority of the board voted Tuesday to kill nearly $1 million in funding for a pet project of the mayor’s, a Tenderloin community court that will prosecute crimes like aggressive panhandling and selling drugs.

The supervisors voted 6-4 against the Community Justice Center, with supervisors Bevan Dufty, Sean Elsbernd, Michela Alioto-Pier and Carmen Chu pushing to keep it. Outgoing Supervisor Gerardo Sandoval, who was elected to be a Superior Court judge, abstained. The mayor can veto the measure; it would take eight votes to override his veto.

This, coupled with the defeat of Prop L, may very well be the end of something that could be a very promising solution to a problem of large magnitude. Granted, there is not a lot of independent research examining recidivism rates in community justice programs (and more research should be generated, because programs like Red Hook in Brooklyn have been around for a while.) However, it does not seem as if the current court system has provided such as successful answer to the mix of homelessness, poverty and drugs in the Tenderloin. Much of the critique leveled at the court by the Coalition for Homelessness stems from misunderstandings about how it is supposed to operate (see for yourselves). And, as those who followed previous posts on this may recall, the sad thing is that this court – whether Mayor Newsom vetoes the decision to kill it or not – seems to have become no more than a pawn in the power struggle between Newsom and Supervisor Chris Daly. While this bickering is going on, we are stymied in a legal system that does not address problems in a holistic way.

If we don’t try progressive solutions to our sentencing system, particularly in quality-of-life issues, we’ll never know for sure whether they do, indeed, reduce recidivism. There is only one way to know, and that is to give this a try. And, much as it pains me to say this as a music and dance lover, this might be worth a bit more to the city as a whole than keeping the opera, symphony, and ballet budgets intact.

Funding the Community Justice Center? SF Prop L

(image taken from a great report on

Today’s Chronicle reports on the controversy regarding the sources of funding for San Francisco’s Community Justice Center, scheduled to open its doors on February 2009.

The article presents the following analysis of the CJC proposition:

Proposition L

What it is: The measure would guarantee funding for the Community Justice Center, a special court to prosecute misdemeanors and nonviolent felonies in the area bounded by Gough, Bush, Kearny, Third and Harrison streets. It would also grant the mayor and Superior Court power to determine which crimes are handled there and expand its jurisdiction.

Arguments in favor of it: Nobody is served by the current system, which cycles perpetrators of low-level crimes in and out of jail without addressing their underlying problems, such as drug and alcohol addictions and homelessness. The court would sentence them to social services and community service to pay back the neighborhoods.

Who supports it: Mayor Gavin Newsom, District Attorney Kamala Harris, the Chamber of Commerce.

Arguments against it: The court would criminalize behavior that comes with being poor like illegal camping and aggressive panhandling. Also, the Board of Supervisors already funded the court, so what’s the point of the ballot measure?

Who opposes it: The majority of the Board of Supervisors, advocates for homeless people.

Some inaccuracies in the report should be mentioned: while it would appear that the court is especially aimed at “quality of lifers”, its jurisdiction is, in fact, more geographic than anything else. The court’s jurisdiction extends over several blocks of the Tenderloin and SOMA. According to Commissioner Albers, who spoke recently at a town hall meeting about the CJC, the only offenses excluded from its jurisdiction would be violent felonies.

The other big issue is whether the court would lead to criminalization of poverty. Proponents argue that city residents will be entitled to the social services pre-conviction, and sometimes even pre-charging; this might ease the concerns on the part of community advocates. However, it does raise the more general issue of “widening the web”.

The concept was first introduced by Stanley Cohen, in his masterful 1985 book Visions of Social Control. Analyzing, among other issues, the movement toward decarceration (we could all use some of that!), he suggests that the addition of non-incarceration, welfare-oriented sentencing alternatives carries the risk of dragging into the government’s net people who would otherwise be left out of supervision. Cohen sees this aspect of the alternatives in a grim light, but your mileage may vary.

In any case, it is an open question whether, by voting for or against Prop L, you would be sealing the court’s fate. As reported by the Chron, the court does count on grants, and other sources, for a large part of its operation over the first year.

Happy voting, and stay tuned for a final election post, on SF’s Prop K.

Recidivism Reduction in Mental Health Courts?

Yesterday, we had the pleasure of hosting Dale McNiel from UCSF, who gave a talk about his work with Renée Binder evaluating the effects of the San Francisco Mental Health Court on recidivism. The court offers various programs and close supervision; the defendants’ progress is monitored and, at some point, they graduate from the program. Participation in the mental health court is voluntary. Here’s a pretty positive take on the program.

McNiel and Binder’s study is a great example of an evaluation project on problem-solving courts. One of the problems in measuring the success of sentencing alternatives is that you really need to compare your program to the traditional sentencing and correctional methods. Due to the fact that the mental health court population is self selected (participation in the program is voluntary), the study and control groups are, obviously, not formed through random allocation. Therefore, various pretreatment variables, which might explain why some people might choose to attend mental health court, might also explain differences in recidivism rates. To partially offset this problem, McNiel and Binder use propensity weighting; they select the control group based on criteria that would make them resemble the population that does choose to go to mental health court, as much as possible.

McNiel and Binder’s findings clearly indicate a reduction in recidivism for both violent and nonviolent offenses, which grows over time. They control for a variety of demographic and clinical variables. The nuances are important; the court seems to be better for people with certain disorders, and I’m not sure I fully understand its interaction with substance abuse and homelessness, which many people in the study group experience. Also, as they point out in their discussion, this is only one study of one court; recidivism rates may differ across mental health courts, and may be a function not only of the programs themselves, but of the sanctions imposed by the court. Fascinating stuff, and I hope the followup yields more generalizable results.

Community Justice Center Town Hall Meeting

The new Community Justice Center, which will officially start working in San Francisco’s Tenderloin neighborhood, is holding a Town Hall Meeting. Here is some more information:

Please join us at the Community Justice Center (CJC) Town Hall Meeting, Wednesday, September 24 (5:30-7pm),

201 Turk Street Apartments,Community Room.

Here’s an update on our current CJC activities:

The Board of Supervisors released reserve funds totaling $1 million. This is primarily for capital costs.
The Board of Supervisors granted the authority to accept and expend the $983,000 in federal funding for the CJC. This is primarily for positions and other administrative costs.
The BOS granted the sublease for 555 Polk, and the authority to undertake the necessary tenant improvements mostly for ADA compliance.
We are starting the construction of holding cells at 575 Polk Street.
In the next week or two, the CJC Advisory Board will be announced. The CJC Coordinator has been selected and will also be formally announced.
Pending the completion of tenant improvements at 555 Polk Street, we hope the CJC will be open sometimin February 2009. In the meantime, the court will continue to work with key city partners to set up the operational infrastructure for the CJC so we can hit the ground running in the spring.

For the Town Hall meeting Commissioner Ron Albers will provide case examples of how the CJC program will work. There will also be lots of time for questions and answers. Please share this post with friends and colleagues.

Read about the CJC in particular, and about other collaborative justice projects in general, on their blog.