A Jail Crowding Q&A with Howard Zehr

I spent my 21st birthday inside a maximum security prison in Pennsylvania, on a field trip for a criminal justice course I took during my senior year at Eastern Mennonite University. It was taught by Howard Zehr, who pretty much founded restorative justice as an academic field. Earlier in the semester, I also had my first opportunity to watch proceedings at our General District Court downtown. I remember being pretty confused as to what was actually occurring in the courtroom, which, looking back, was a nice little personal introduction to our extremely confusing and convoluted justice system.

Anyhow, at the second listening session held last month in Harrisonburg on the issue of our increasingly crowded jail, I was surprised how many people used the term “restorative justice” in their pleas that we not simply build a bigger jail. Afterwards, I dropped in on Howard, who lives in Broadway and now co-directs the Zehr Institute for Restorative Justice at EMU, to talk about jail crowding, local corrections and restorative justice as it pertains to our present situation.


So, jail crowding?
I thought I might start by talking generically. It usually isn’t the jail that’s the issue. It’s the system that’s ahead of the jail. The jail is the end of the pipeline. The sheriff’s department that administers the jail doesn’t have a lot of control over that. It’s usually a symptom of something else – the policies, procedures, individual personalities and so forth, in the system. You can build a bigger jail, but you can pretty well guarantee that in a few years, we’ll be back at this situation if we don’t address the underlying issues.
If I had to choose, I would say it’s the Commonwealth’s Attorney’s office that is the crux of the issue.
They make the charging decisions, they make the initial bail decisions, they make the initial plea agreements, and so the judge to some extent is stuck with what happens there. The prosecutor’s office also has probably the most discretion in the whole system, the least transparency and is the most political.
With judges, there’s some degree of accountability because what they do is done in open court, and often there’s a record. One of the things that happened when we as a society tried to reduce discretion and discrimination by mandatory sentences, we moved the discretion out of the judges’ chambers and into the prosecutor’s office, where there’s even less transparency.
So in my mind – and I’m speaking generically here – if I were going to look at a system, I would look start with the prosecutor’s office, and then I would also look at judges’ policies and so forth.
There’s very little accountability. I used to say the judges and prosecutors ought to have a budget like the rest of us do. A punishment budget. Right now, I think, prosecutors and judges can make decisions based on what’s in front of them, without much thought to where these people are going to end up and what the impact is going to be.
If we don’t look at that, the whole structure of the system, then the jail is just a symptom, and it’s an expensive one.

Explain ‘punishment budget’ a bit more.
Courts have a budget, but they don’t have a particular amount of “punishment money” or “jail money” that they would have to manage. They can basically sentence people and the jail has to take them in. Or the prison system has to take them.

And so it’s somebody else’s problem to pay for it?
The money’s basically someone else’s problem. That may be oversimplifying it, but that’s kind of how it works.
I have a former judge friend who likes to say, “This is a great job. The more I fail, the more money they give me!”

As I’ve reported on this, it’s become clear how there’s no one person or agency with final responsibility over criminal justice at the local level. If you ask somebody to explain something, or give you some information, you might get some, but there’s almost always some part of the answer that’s someone else’s responsibility or problem.
That’s exactly right. There was some research done in Canada some years ago that I cite in my book, Changing Lenses, around that. It’s a segmented system where no one has to feel responsible for the outcome. So even in a death penalty case, everyone can pass the buck and nobody takes full responsibility for the life that they’ve chosen to take. Everybody gets to pass the buck in some way.
Academic analysts of the criminal justice system sometimes say you have to use game theory to understand it. Some people say it’s not a system in the sense of coordinated segments, but rather it’s pieces, each with their own game rules, and they intersect some, but the prosecutors, the police – everybody has a different set of rules that they play by, and different incentives, and different reasons why they’re doing what they are.
And so that’s part of the problem. There’s not any kind of coordination in place.

In a situation like this, what major questions should the interested public and elected leaders be asking?
In general, we as a community ought to be demanding more engagement with the system. There are a number of analysts of the American criminal justice system right now saying that what we’ve done is professionalize it too much. There’s a role for professionals, but there’s also a role for laypeople. The professionals need laypeople’s values and opinions and vice-versa. And so they’re arguing for things like enhanced juries, where juries have a bigger role, and more use of observers in the courts and that kind of thing. So one thing we should be doing is looking for more partnerships.

What involvement do you have now in this discussion in our community about crowding in the jail?
I’ve been torn on that. I’ve been trying so hard to get semi-retired from this justice stuff. I just need some space, a sabbatical from it, and it’s so hard to get. So I’ve had a little bit, but so far I haven’t been very involved, I’m afraid. I wrote an op-ed.

At the listening session I went to, “restorative justice” was a term that was on everybody’s lips. You coined that term, right?
I didn’t coin the term. I gave it to the field. It wasn’t out there before. I couldn’t remember where I got it until a few years ago, a human rights lawyer from South Africa was working on her PhD, and she came over and I turned her loose here. She found this book here on my shelf that had an article by a fellow named Albert Eglash. And he has a line of terms in one sentence, and there was a term ‘restorative justice’ and I’d underlined it, and then I remembered that’s where I’d gotten it. Then she traced it back to a German theologian in the ‘50s.

How would you define ‘restorative justice’?
Well, what we have is a desserts-based system of justice. You’ve gotta make sure people get what they deserve. I often say the legal system asks three questions: What laws are broken? Who did it? And what do they deserve?
Really, if you get down to it, that’s the legal system. Restorative justice is trying to change the questions. It’s saying: Who’s been hurt in this situation? What are their needs? Whose obligations are they? It’s needs-based. It doesn’t rule out the idea of people deserve certain things, but it’s much more focused on needs and obligations.
This field started with practice, not theory. There was concern about victims’ needs. There was a feeling that we weren’t holding offenders adequately accountable. There was a real feeling the community needed to be more engaged, and so it led to what at that time was called ‘victim-offender reconciliation.’ We don’t use that term anymore.
When I got into it, I started to maybe rethink what justice was all about, and I was trying to articulate what we did. And so in the early ‘80s, the first time I presented this was to a national conference of Catholic priests and nuns who were doing prison ministry. And then Changing Lenses is where I kind of rolled it out.
It sounds so good. That’s one of the pluses and minuses about the term ‘restorative justice.’ It’s intuitive, it sounds really good, and so it results in a lot of people think they know what it is without really knowing what it is. And people like to kind of throw it around. So whether the people mentioning it have any idea what it is, I don’t know.
It does represent the possibility that there are a lot more alternatives besides jail. Jail’s not the only thing that we could be doing. Some of those might be truly restorative justice programs. Some might be more rehabilitative programs. Some people have had really good experience with drug courts. Courts that really understand addiction problems and work on the resolution of them can make a huge impact if they’re done right.
So I could imagine a restorative justice court. I don’t have any illusion we can do away with the legal system. I wouldn’t want to. But my dream would be a day when the full legal system is the backup. Your first line is a restorative process of some kind that asks ‘Who’s been hurt in this situation?’
I’d like to see that as the front line and then use the courts when people deny guilt or when you can’t resolve things in other kinds of processes.

Do you think that it’s plausible to move in that direction here in Harrisonburg and Rockingham County?
[At the listening sessions], it hasn’t just been people digging in their heels saying ‘we don’t want to spend money on the jail!’ If you listen to those hearings, they’re saying, ‘we need to take care of our community.’
I think that is a plus. [But] I think our system in Virginia generally is a very old-fashioned, conservative system, so I don’t think our system as a whole is ready. There are components of it that are ready, and if we can show enough interest from the community in that kind of dialogue, that there may be some kind of hope for it.
We have a lot of resources here. James Madison has been a national leader in implementing restorative justice on a college campus. There are a lot of resources here and there are a lot of concerned people here. But it’s going to take a lot more system-community dialogue and collaboration than we’ve had so far.

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