TAKING THE PUNISHMENT OUT OF THE PROCESS:

FROM SUBSTANTIVE CRIMINAL JUSTICE

THROUGH PROCEDURAL JUSTICE

TO RESTORATIVE JUSTICE

 

67 Law & Contemporary Problems No. 4 (Fall 2004)

(Published by Duke Law School)


[Excerpts, some footnotes have been omitted.]


Brenda Sims Blackwell Footnote & Clark D. Cunningham Footnote


... 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. Footnote

          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. Footnote

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.” Footnote ...


          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.” Footnote 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.” Footnote

          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 Footnote

          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. Footnote

          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.” Footnote ...

          ... 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. Footnote

          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.” Footnote 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. Footnote

          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. Footnote 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 Footnote 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. Footnote 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. Footnote

          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. Footnote

          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. Footnote 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. Footnote 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. Footnote 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.