TAKING THE PUNISHMENT OUT OF THE PROCESS:
FROM SUBSTANTIVE CRIMINAL JUSTICE
THROUGH PROCEDURAL JUSTICE
TO RESTORATIVE JUSTICE
Draft Submitted for Publication in
67 Law & Contemporary Problems No. 4 (Fall 2004)
(Published by Duke Law School)
[Excerpts from manuscript draft; some footnotes have been omitted.]
Brenda Sims Blackwell
& Clark D. Cunningham
... Douglas Ammar, the executive director of the Georgia Justice Project (GJP), in a recent law review article tells the following story:
Ben was married last month. Most of the GJP staff was there. We have
worked with Ben for over ten years. Five years in prison and five years
out of prison. He was imprisoned after being convicted of armed robbery.
He was sixteen-years old and, quite unfortunately, he grew up in prison.
We were with him throughout his case. We visited him during his
mandatory five-year term in prison. He started working for GJP’s in-house
business (New Horizon Landscaping) within a week of being released
from prison. ... At his wedding, ten years after interviewing a scared kid in
jail, I feel nothing but pride. He is marrying the mother of his children and
he is in the best place I have seen him in years. He successfully went
through a drug treatment program. He enrolled in a local community
college. And he has been a dependable part of our landscaping
company. ... As Ben’s grandfather performed the ceremony and about
one hundred or so friends and family gathered around, I saw a
community. I saw the lines blur between lawyer and client, employee and
employer. Client turned counselor turned supervisor turned friend. I saw
the breaking of old and the formation of community. It is this vision of
community that keeps me going. After almost fourteen years of doing this
work, Ben’s wedding provided a glimpse – a confirmation, really – of our
goal.
Although GJP began as a non-profit law firm, representing indigent defendants in the Atlanta metropolitan area, it now operates in a way very different from conventional public defender programs. As Ammar explains:
At the GJP, the attorney-client relationship is only the beginning of the
relationship, not the end. It does not define the boundary of our
relationship. In the realm of criminal defense and legal ethics, many
assert that such amorphous boundaries cause problems in the attorney-client relationship and are beyond the scope of professionalism. We have
found the opposite to be true. More permeable boundaries allow our
clients to trust us more and begin to see us as true advocates.
He insists that “being relationship driven is the most unique and powerful aspect of the
GJP’s practice. At the GJP, we seek long-lasting, redemptive relationships with our
clients. Attorneys and other staff delve deep into clients’ lives to better understand their
legal, social, emotional, and mental health background.”
...
This section offers an extended case study of an innovative non-profit
organization in Atlanta, the Georgia Justice Project, that is having notable success in
restoring defendants to the community by integrating restorative justice principles into
the setting of a criminal defense practice. Like any conscientious defense attorney, the
GJP lawyers strive for substantive justice – vindication of the wrongfully accused and,
for those found guilty, a sentence which is fair and appropriate. However, they also
resist the procedural injustice of the criminal courts – working hard to keep defendants
out of jail while the case is pending and affirming at every step the dignity and worth of
their clients. Over time the organization’s commitment to substantive and procedural
justice has caused it to evolve from a non-profit law firm into a complex organization
that defies simple description. GJP describes itself as “an unlikely mix of lawyers,
social workers, and a landscaping company.”
The organization explains its mission in
the following words:
“When a poor person is accused of a crime, most of society sees this as
an end — the Georgia Justice Project sees it as a beginning. GJP
defends people accused of crimes and, win or lose, stands with our clients
while they rebuild their lives.”
GJP undertakes this ambitious mission by first creating a more procedurally just process, as public defenders who involve the client in the case – e.g., promoting procedural justice from the public defender position (even though they cannot control the other agents). In other words, GJP is a program that is engaged in “restoring” defendants by increasing procedural fairness within traditional justice processing. Second, and perhaps more importantly, GJP creates a “community” in which the success of the defendant – not only in the legal case but also in the life changes that they engage in – is supported.
a. History of the Georgia Justice Project
In the 18 years since its founding in 1986 the Georgia Justice Project has grown from a one-person operation operating out of a house into a nationally-known organization with seven full-time employees (including three attorneys and a social worker) as well as two part-time counselors, a landscaping crew, and at almost all times a large contingent of student interns from a variety of disciplines.
The organization began as the initiative of a single attorney, John Pickens. While employed as a partner at one of Atlanta’s largest law firms, Pickens had volunteered for a number of years at the homeless shelter operated by his church, which was located in downtown Atlanta. When people at the shelter learned he was a lawyer, they began asking for legal advice and representation. As a result, Pickens started going to Atlanta’s various criminal courts, first as an observer:
Before I became actively involved in the criminal justice system, I went to
the courts to observe what was happening. From the outside, things felt
rushed – hectic – somewhat confused by the speed of persons passing
through the courts. Something wasn’t right. It seemed like people were
being expedited. That feeling of years ago has now been confirmed –
expedited justice is no justice at all.
Pickens then moved from observation to doing volunteer criminal defense work
for the homeless. That experience led him on a pilgrimage that began when he left the
law firm in 1981 to start a small partnership that included criminal defense work. Over
the next five years Pickens came to feel ever more intensely that the conventional
model of legal representation was inadequate to meet the needs of indigent
defendants. As a result, in April 1986 he left private practice entirely to found a non-profit organization that was initially called “The Atlanta Criminal Defense and Justice
Project.”
...
... From 1986-88 the organization operated out of Pickens’ home. During the summer of 1986 Douglas Ammar, who would later succeed Pickens as executive director, worked with Pickens as a volunteer during the summer before he started law school. In the Fall of 1987 the Mennonite Central Committee (MCC) placed a recent college graduate, Gray Fitzgerald, with the organization as a long-term service volunteer, primarily to do work with persons in prison or recently released from prison. Apart from these two volunteers, Pickens was the organization’s sole staff person – and the only person providing legal services – during its first four years.
A five year grant from the Public Welfare Foundation combined with small donations, primarily from individual lawyers who knew Pickens personally, enabled Pickens in 1988 to move the organization out of his home into a small store-front location at 458 Edgewood Avenue, sharing space with a non-profit restaurant that provided meals to the homeless. This location was near downtown and in the heart of the Martin Luther King, Jr. National Historic Site. (Around the corner from the new office, and on the same block, were Dr. King’s grave, the Martin Luther King Jr. Center for Nonviolent Social Change, and Ebeneezer Baptist Church where Dr. King’s grandfather, father, and Dr. King himself served as pastors.) Pickens explained his choice of location as follows:
For a number of years, I have felt it important to have an office in the
Edgewood-Auburn Avenue area ... [M]any of my clients frequent and live
there. In ministry, I have come to believe that where you do your work
(i.e. where you place your body) is just about as important as what you
actually do. This is especially true when working with the poor and
marginalized.
In 1990 Ammar returned as the organization’s second lawyer and paid staff
member. The following year the organization took a significant turn when it hired as its
third staff member Ricks Anderson. Although Anderson had earned a law degree in
1977, by 1990 he had spent over 8 years living in the street, committing petty crimes,
sometimes eating out of garbage cans – due to a drug habit that started soon after law
school. When his father died in 1981 Anderson put his mother in a nursing home,
squandered his parents’ life savings to buy drugs, and abandoned his wife and five
children in Chicago to “adopt the lifestyle of a nomad.”
Pickens represented Anderson
three times between 1987 and 1989 on theft and burglary charges. When Anderson
first became a client, the organization not only represented him in court, but also found
him a place to live, money for food and a job after he got out of jail. But Anderson
reverted to his old ways and walked out on the job. It was not until 1990 that Anderson
finally succeeded in conquering his addiction, spending 11 months in a residential drug
treatment program.
Although initially hired with the thought that he would primarily assist Pickens and
Ammar as a paralegal, Anderson’s personal experience motivated him enter into
intense counseling relationships with clients that paralleled the legal representation the
lawyers were providing. Ammar credits Anderson as the main initiator of two of the
most innovative aspects of the GJP program.
It was Anderson who successfully urged
that the zealous legal advocacy being provided for free by the lawyers be used explicitly
as an incentive for clients to begin making profound changes in their personal lives – a
strategy that eventually evolved into the multi-stage agreement that clients make with
GJP as a condition of receiving services. The client counseling informally initiated by
Anderson
became an explicit component of GJP’s structure in 1992 when a recently
graduated seminarian, Kevin Wilkinson, was hired to provide social services.
Although Wilkinson was not, like Anderson, a former client, he also had deep personal connections to the kinds of problems experienced by GJP clients.
Wilkinson, a former professional football player turned successful businessman,
had decided to enter the ministry following the intersection of two events.
First his
great aunt, to whom he was very close, was assaulted and raped by a homeless man
addicted to crack cocaine. Then, just a few weeks after this crime, Wilkinson’s brother
came to him, admitting that he was addicted to crack and near the point of suicide. After
getting his brother through a drug treatment program, Wilkinson moved to Atlanta to
attend seminary, where he focused on inner-city ministry to the homeless and addicted.
Wilkinson’s hiring coincided with the phasing out of the MCC volunteer program, and
apparently his initial job description, like the work of the MCC volunteers, focused on
prison visitation and post-release support. However, as indicated in a newsletter
published the month he was hired, Wilkinson like Anderson immediately became
intimately involved with clients during their pre-trial representation:
Several of our clients in the community relate almost exclusively to Kevin,
and we are in closer community with all our people because of Kevin’s
efforts. ... Kevin and two of our former clients are co-leading our Friday
night support meetings for our clients living in the community.
Additionally, the three of them are planning other ways that we can be of
service to our clients.
It was also Ricks Anderson who first suggested that GJP start its own business
to provide employment for clients. GJP hired another former client, Fred Francis, to
develop a business plan, which led to the establishment of New Horizon Landscaping
as a subsidiary of GJP in 1993 with Francis as the first director.
A third former client, Juliana Moore, also joined the staff in 1993. GJP had
defended Moore in 1990 when she was charged with murdering her infant son.
Although even the state’s psychiatric expert agreed that Moore’s previously diagnosed
mental illness caused her actions, on GJP’s advice Moore negotiated a guilty plea to
manslaughter rather than seek an acquittal based on insanity which could lead to an
indefinite term of commitment to a mental hospital.
She received a two-year prison
sentence (with credit for a year of pre-trial incarceration). GJP visited her in prison and
several months before her release started to make arrangements for her, including a
successful application for treatment in an out-patient mental health program. GJP
threw her a “freedom party” the week after her release and when her living
arrangements with a relative became strained, the organization found her housing and
paid her rent for several weeks. She also went through intensive counseling with
Wilkinson, culminating in a cathartic visit to the grave of her son. Moore worked as a
volunteer receptionist at GJP which helped her obtain an internship with another
agency. In September 1993 GJP began a fundraising effort to hire Moore as its first
full-time receptionist and she was hired soon thereafter.
Although GJP’s hiring of former clients, especially Anderson and Moore, was
motivated in large part by a desire to help those individuals rebuild their own lives, the
insights and increasing leadership provided by them and the other non-lawyer, Kevin
Wilkinson, were a significant force that led to the transformation of the organization
from a non-profit law firm into its current unique form. GJP’s founder, John Pickens,
originally saw the work of substantive and procedural justice as the task of the lawyers
in the phases leading up to case resolution and the work of restorative justice as the
work of the non-lawyers in the post-resolution period in the form of jail visitation and
post-release housing, employment, and counseling.
Although both lawyers (Pickens
and later Ammar) were motivated by their personal values and religious beliefs to view
their clients as whole people and to enter into caring relationships with them, their
professional socialization as attorneys still inclined them to separate “legal work” from
“social work,” as indicated by the organization’s early practice of labeling the work of
non-lawyers as “paralegal,” “receptionist,” “prison visitation,” and “post-release support.”
However, as former clients became co-workers and colleagues a new kind of
community was formed – the kind described by Ammar in “Ben’s Wedding” – in which
the lines between legal representation and social work blurred and many different
approaches to working with criminal defendants blended.