'The judge' — points to heart — 'is in here now'

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For the second time in her three-month tenure, Hennepin County Attorney Mary Moriarty and her office are under heavy criticism for reversing decisions to prosecute teenagers charged with homicide as adults. (Among recent coverage of the two unrelated cases: "No adult court for teen who killed two," April 1, and "Ellison criticizes juvenile plea deal in woman's killing," April 6).

There have been complaints about "a slap on the wrist," public protests and dissenting views within the prosecution office. Most poignant have been the expressions of grief and anger from the victims' families.

Any homicide case is a tragedy all the way around, for the victim and their grieving family, the angry community and, yes, for the perpetrator.

There is no good solution for such a miserable situation, but we look to the criminal justice system to provide some closure. The victim's family desperately seeks "justice" as some solace for their loss, which often takes the form of wanting revenge. The public understandably wants a heavy punishment, both for the psychological balm of "justice" and the reassurance that the community will be safe.

Unfortunately, both these hopes are usually unfilled.

Our criminal justice system does one thing quite well. The rate of death by violence is orders of magnitude lower in modern states with police forces and courts than in stateless tribal societies. There are many reasons for this, but the principal reason is that by appropriating a monopoly of force, the state co-ops the revenge cycle by promising impartial justice. The U.S. Supreme Court has recognized that one of the benefits of the death penalty is that it displaces "self-help."

Since this success of the criminal justice system heavily depends on public trust in its fairness, criminal justice reformers bear a heavy burden of respecting public reaction to their reforms and offering a persuasive justification.

The most persuasive justification I have seen for taking a more restorative rather than punitive approach to criminal justice is Danielle Sered's highly acclaimed 2019 book "Until We Reckon." For 17 years, Sered has managed Common Justice in New York City, a unique program offering alternatives to incarceration for violent crimes.

Surprisingly to many of us, long prison sentences are not what victims need. Sered emphasizes that there is absolutely no evidence that connects the length of a defendant's prison sentence to the well-being of the victim.

The criminal justice system perpetuates the myth that harsh punishment is the road to healing. For many victims there is short-term relief when a case is resolved to their satisfaction. But Sered points to how time after time, victims tell parole boards stories of their ongoing, ceaseless pain 10, 15, 20 years after the crime.

Trauma cannot be healed by the suffering of someone else. Based on talking with hundreds of victims of violence, Sered lays out what they want most of all. Trauma is an experience of powerlessness. Survivors need to regain a sense of control over their lives after the senselessness of a violent crime. They need to be heard and have their pain acknowledged, to get answers, and to be able to construct a coherent story about their tragedy, why it happened, and their capacity to get past it. They want to speak out and make a difference.

Healing like this takes long-term trauma-informed care and culturally rooted healing practices.

Victims want to feel safe and for others to be safe. Those who are provided restorative encounters with perpetrators come to understand that they are not "super-predators," but flawed human beings capable of deep remorse who themselves have often been traumatized.

When I was a prosecutor, I felt great professional satisfaction in obtaining long prison sentences in murder cases. It seemed to be what the families needed. I was wrong. Rather than trying to maintain public trust by perpetuating a myth about the value of long sentences to victims, the criminal justice system could better provide the services that victims most need.

Nor do long prison sentences provide the safety and security they promise. Sered points out, I believe correctly, that the conditions that repeatedly generate violence are shame, exposure to violence, social isolation and inability to meet one's economic needs. What do we expect to happen to people who spend years of dehumanization in a harsh prison environment, isolated from friends and family, while losing their ability to support themselves and their families?

Sure enough, defendants who serve prison sentences are more, rather than less likely to commit future offenses. Nor do long sentences provide much deterrence — surveys have shown that most young people have no idea what criminal penalties are likely to be. Swiftness and certainty matter much more than severity.

Sered's program has been successful in reducing violence with long-term accountability work with perpetrators rather that long sentences. Is this just a "slap on the wrist"? Well, serving time requires no moral effort whatsoever — one day will follow another no matter what the person does.

But true accountability, having to confront a victim and hear their pain, having to explain seemingly senseless actions and acknowledge responsibility and decide what needs to be done about it, having to make the long struggle to become someone who does not commit harm, takes much more resolve and courage than doing time.

Sered tells the story of a hardened gang veteran who wanted to stay in her office after a long circle session with someone he had beaten and robbed. When she asked him why, he said his hands wouldn't stop shaking because, "This is the scariest shit I ever did."

The result of a successful accountability process is that a person shifts from extrinsic motivation (fear of consequences) to intrinsic motivation. One graduate of Sered's program, who had been known as "the Enforcer," told her he no longer needed the threat of prison because, pointing at his heart, "The judge is in here now."

Revenge and harsh punishment are not the finest dimensions of human life. We can build a justice system based on the human capacity for healing and growth — one that maintains public trust by keeping its promises, not perpetuating myths.

Bruce Peterson is a senior district judge and teaches a class on lawyers as peacemakers at the University of Minnesota Law School.