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Without community, real ‘justice’ remains elusive
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AS I read Wan Lixin’s column (“Law or heart? There’s always room for both,” March 29, Shanghai Daily), I was in a reflective mood: it was the 20th anniversary of my beloved and much-honored father’s death.
Perhaps because of this, my mind was less moored to “the present” than usual, and musing over the concept — and purpose — of law and the larger social good led me to reflect on the Western concept of justice as well as to one of those almost-moments of my legislative career.
I have always believed that the purpose of law was both to determine the truth of alleged transgressions and to reach a conclusion or outcome that would best serve both the individual(s) involved and the larger community.
Accordingly, I am more than a little uncomfortable with the adversarial process used in American courts. While it purports to seek the attainment of truth and justice, it actually is heavily dependent upon the quality of the attorneys available to both the prosecutor and the defendant. It is not really any kind of joint effort to establish the truth but, rather, represents an outcome reliant in good measure upon the knowledge and debate skills of the respective attorneys.
Thus, sometimes the guilty go free and the innocent do not.
Which brings me to my memory of a legislative attempt that almost came off:
As the area of my hometown that I represented in the Iowa Legislature included all my former City Council district, I had become quite familiar with many of its people — and its ongoing problems — over the 12 years of my elected service.
Observing that a disproportionate number of primarily young men of color were frequently coming into conflict with “the law” — the police first, then the courts — and that while the system did afford them a jury of their peers, these were clearly not the same people who lived in the neighborhoods from which they came, and that, therefore, whatever sentence they incurred had little direct impact upon, or relation to, those neighborhoods against which they had committed their offenses, a life-long friend of mine who worked with many of these same youthful offenders worked with me to set up a trial program that, for want of another term, could be seen as community-based justice.
The idea was this: when someone offended against their neighbor, whether that be a crime of property or an assault against their person, they would be subject to standard arrest and arraignment. But then, before proceeding before a judge and jury “their neighborhood” — broadly defined to include where they lived and where their offense occurred (not always the same) — would convene a neighborhood hearing that, while adhering to the search for truth and a just solution, would not be subject to the same procedural rigor of an actual courtroom.
Giving neighborhood more say
What this friend and I envisioned was a process that would allow “the neighborhood” to confront the offender with the harm she/he had caused them, as well as for them to question the alleged offender regarding both what happened and why she/he had chosen to act this way.
Then, when this “fact-finding” and consequence-sharing had ended, the neighborhood would deliberate about: 1) whether the alleged offender had indeed committed the offense; and, if so, 2) what a fair and just sentence would be. It was in this latter stage, especially, that I hoped that more creative sentences might evolve than those more likely to be rendered in a traditional courtroom.
After the conclusion of this process, including the recommended punishment for the offender, all of this would be forwarded to the judge ultimately responsible for the case. At this point, the judge would have the authority (providing that I succeeded in getting the legislature to allow for this) to accept — in whole or in part — the assessment by the neighborhood community and its proposed resolution or, on the contrary, to reject — in whole or in part — their findings and recommendations. In the latter case the offender would then proceed on to the regular trial process.
It was my hope that this could be established as a local pilot that would be carefully monitored so that, after a year or two, an assessment could then be made that would form the basis for a more substantial, statewide program for legislative consideration.
Alas, even though my friend had found a couple of judges in the city who were willing to sign on to that trial, I left the legislature before I could introduce enabling legislation. (This happened because the Legislature was already in the process of transforming from a truly deliberative body to one more typical of today, wherein ideology-based partisan positions determine outcomes instead of data-driven decisions.)
Anyhow, I thought Wan Lixin might possibly be interested in this memory that was jarred loose by his excellent meditation. In today’s United States, the goal of equitable “justice” is further from being realized than ever, I fear.
The author was a member of the Iowa State House of Representatives and also served in the Iowa executive branch. He retired in 2004. Shanghai Daily condensed the article.
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