EXCITING NEWS! We have received word from Human Rights Watch that our calls to them asking them to address more directly the issue of victims rights, often neglected or misunderstood in advocacy efforts for prisoner rights, has resulted in their completion and publication of a report at this point inspired by this very website "Victims Rights are Human Rights".
This report which quotes us extensively, and credits us for its inspiration, details the rights of victims by international human rights standards. We consider this publication as a result of our dialogue with them to be one of the most significant accomplishments of IllinoisVictims.org.
We commend the excellent work done by its author Allison Parker and Human Rights Watch.
This report from HRW will have significant national and international impact and is the first major published report exploring the connections between Victims Rights and Human Rights. We commend Human Rights Watch for this magnificent accomplishment on behalf of Crime Victims everywhere.
Among its most exciting recommendations is the call for an International Treaty on Victims Rights, something we heartily support and will work for.
Example of how we are quoted in the report are as follows:
"There is consensus in international standards and domestic law on the importance of providing victims with information about developments in the case. This may be because victims themselves view access to information as one of the most important rights they have:
You cannot imagine how important it is for most victims to know what is going on with their case. Information is more important than almost anything. Victims will say this is so even if they have worked through restorative justice with an offender who has apologized for murdering their loved one and they have forgiven them. Even in those cases, the one thing that victims seem to need is information: ‘Why did you do it? What happened? What were the details? What were her last words?’ That’s what victims seem to need more than anything else is information. And that is so often what they don’t get.
"Victims’ rights have been implemented inconsistently in other ways as well. For example, one advocate told a Human Rights Watch researcher:
All 50 states have passed victims’ rights amendments. But there’s not enough enforcement. For example, in Illinois it’s required that all victims’ rights are posted in every courthouse in the state. But they are not. Some judges are saying “I don’t want to upset the defendants” and so they’re refusing to comply. So, there are a lot of things that are written in principle in constitutions across the states that are not being done."
Below is our original essay on "Victim Rights as Human Rights" primarily written to our friends who have an offender-focused approach to prison reform, the death penalty, and other related issues. It was written to try to urge a more balanced approach to their advocacy, one that embraces Restorative Justice Principles.
Victim Rights as Human Rights by Bill Jenkins (2006)
We receive letters from prison reform activists who ask us questions similar to the following, "On what moral grounds do you oppose releasing a person from prison who has conclusively demonstrated that he or she is no longer a danger to anyone? What moral purpose is served by keeping a person in prison forever?" An excellent question, especially if the victims/survivors can strip away the emotional component of their traumatization to such a degree that they are capable of being purely objective about their case.
But it's not that easy. Offender-centered activism on social reform issues can take that more objective perspective on prisoners and their plight, mainly because many of these activists who are good-hearted, sympathetic, and caring people have not been victims themselves. But we find that they, too, have an emotional component to their work. If prison activists and reformers are doing the work well, they are also visiting the prisons, working with inmates, mentoring and teaching, and generally becoming, in some cases, an inmate's sole support on the outside. We have in fact seen many become blind to all else, in some extreme cases. This is sad because they then often become incapable of doing their jobs.
We have been in the prisons working with inmates. We receive calls weekly from inmates who need to talk, want to share their excitement about a class they are taking, or need our help to solve logistical problems in their lives. We are part of their family, and, as strange as it may seem to some, they are part of ours. We have lived the work of Restorative Justice.
But we resist the urge in our human rights endeavors to fall into the trap of the upside-down Stockholm syndrome of the larger prisoners' rights community where the captors develop a sympathy for the captives through personal interaction. Some refer to this phenomenon as the "Lima Syndrome," but the result is seen in prisons everywhere, even in guards, chaplains, and other prison staff and administration.
It's easy to see how people of conscience can become sympathetic to prisoners. It is a New Testament Biblical imperative and often a practice of faith and conscience in caring for those less fortunate. Prison administrators have for many years dealt with the balance of providing a safe and orderly environment for inmates, free of abuse and violence, while at the same time suffering the accusations of prisons being "country clubs for murderers" leveled at them by social conservatives and some victims. We have all heard the horror stories of abuses of power in the prison system and none of us, knowing what we do about prison life, would want to spend one hour behind bars. We know of no one who would call a prison a nurturing environment.
People of conscience also have one important trait that is commendable and inspirational -- they always want to believe in the redemptive quality of the human spirit. This desire to believe the best in others, coupled with the relatively short and controlled contact with inmates themselves, can lead to a strong desire to see these men and women released. It is easy, if you are not already skeptical of the motives of others, to see on the other side of the bars the face of one who should no longer be there.
Perhaps the greatest "flaw" that we have seen in observing those well-meaning colleagues of ours with whom we differ on the issue of early release from prison and how to do sentencing reform without hurting victims unnecessarily, is that they see the world for what it ought to be, instead of what it is.
Seeing injustice in incarceration is not a flaw in one's character, but the sad fact is that many caring and sympathetic individuals learn the hard way that they are being manipulated. In acknowledgement of this very real danger many organizations that sponsor prison visitation have very strict rules about the level of contact allowed with the prisoners and carefully select which prisoners will be involved in this program.
Sister Helen Prejean, famous for her work against the death penalty, shares in her landmark book, Dead Man Walking, how she mistakenly focused solely on the offenders on death row at the outset of her work, until she realized that the victims needed her prayers and attention, too. In all humility she became a bridge of compassion as she placed one foot firmly on both sides of the crime, serving both the victims and the offenders.
This is what we are asking of those who are working for prison reform. Don't focus solely on the inmates because of their ever-present incarceration. Victims are serving sentences of their own. The loss of innocence, the loss of a family member, the loss of trust, the loss of their lives as they once knew them. But the prisons that the victims are in are not made of bricks and mortar. The scars, seen and unseen, that are constant reminders of their trauma and having to live every day as the victim of a crime change victims fundamentally. Telling them they simply must "get over it," as we have heard all too often, is simply not possible. These wounds are deep and often these victims, depending on their circumstances, continue to live under the shadow of the perpetrator.
Victims are often forgotten in the aftermath. After the trial they return to daily living, such as it is. A "new normal" has now taken over and they must begin to adjust to their new identity as a crime victim, hopefully moving slowly toward the place of being a "survivor." But it is not easy to move beyond the empty chair at the table, the nightmares and terrors in the dark, and the symptoms of post traumatic stress. No good has come from any crime. Victims are victimized and perpetrators are punished. It is a lose - lose situation no matter how you look at it.
As victims begin putting their lives back together, they use certain things as anchors. One of these anchors is the sentence. At the end of the trial someone from the prosecutor's office generally explains the sentence to the family of the victim. What the actual time served will likely be. How good time credits will apply to the sentence, and so on. In most every case, however, the victim's sense of personal justice will not be served by the determinate sentence given by the state. That is the nature of the emotions of having something precious ripped away from you by another in a violent crime. Over time, these emotions may fade somewhat, or go undercover to resurface later, but the loss remains.
No matter what the sentence is, light or severe, it becomes an undeniable part of the victim's life. This is what victims must accustom themselves to. In the case of short term sentences, the victim must come to grips with the fact that, as far as they are concerned, the sentencing is unfair but they must live with it. If the sentence is a long-term sentence, the victim must accept the fact that good time reductions may influence the time served, or that the inmate will die in prison. In most all cases, however, the word of the judge is seen as inviolable and sets the course for the future.
In some states other than Illinois, parole is still a sentencing option, and as a result, victims must steel themselves to relive the trauma after some time has passed in order to continue to participate in the justice system to which they have a right. Prior to each sentencing hearing victims will spend hours composing a statement, reliving the event, and reviewing the faded newspaper clippings and photographs in their scrapbooks. More tears will be spilled and scabs will be ripped away causing fresh trauma to an already damaged and hurt psyche.
Up until the 1970's, victims were rarely considered a part of the criminal justice process. They were routinely excluded from the courtroom, not consulted, received no services for their victimization, and generally treated in a cavalier manner by the professionals in the criminal justice system. The prosecution often considered them a nuisance, and the defense considered them a threat. It was not a good time for victims.
Then the Victim Rights Movement made some headway. Statutory protections for victims of crime were enacted, ironically by some of the same liberal agents that now work for prison reform. State constitutions were changed to enact protections for victims. These protections include the right of the victim to be present at hearings and proceedings involving their case, the right to make statements and to be heard, the right to be protected from intimidation, the right to restitution from the offender, and other rights that are important for the victim's health and safety.
This was a defining moment for victims and even though we still see abuses of these rights by those who intentionally or unintentionally deny them, victims now have their rights spelled out in law, just as the defendant has from the time this country began. Interestingly enough, in today's political arena the conservative wing is now championing the rights of victims while the progressive elements are off looking for other damsels in distress and have clearly forgotten that victims' rights is one of the quintessential non-partisan issues of our day.
Victim rights are human rights. They are reasonable and have been constructed so as to not interfere with the rights of the accused. But how are victims seen by those who care for the interests of the prisoners? This is a point of potential conflict and one which we feel is important to address lest a pitched battle between victims and prisoners erupt in our legislatures.
Many of us who have considerable experience with the prison population recognize that there have been occasional mistakes and miscarriages of justice. High profile cases of malfeasance at the law enforcement and prosecutorial level have led the release of innocent prisoners, and clearly more need to be yet addressed. But these cases are the exception, not the norm. We feel that cases of actual innocence are a difficult issue in our society today and we support efforts to ensure that the actual perpetrator of the crime is apprehended and incarcerated. But cases of actual innocence cannot be addressed with the current attempts to reintroduce parole and to do so retroactively.
There have been several attempts lately to take a step backwards in our sentencing protocols in Illinois. Determinate sentencing has been the method of choice since the 1970's, along with most other states that also moved in this direction over the past several decades. As the type of sentencing employed in Illinois changed, several things changed with it.
First, sentencing guidelines for various crimes were restructured and in many ways became fairer. Rather than a range of years, a reduced sentence was given based on the actual time served for offenses considering when parole was generally granted for these offenses. This obviated the need for parole as it was worked into the formula for the determinate sentence. Good time credits were also instituted in order to do what parole often addressed -- good behavior -- and now, the prisoner's date of release was made his responsibility. This is an important element to consider when asking for a reintroduction to parole. Every case covered by the proposed reintroduction of parole would have to be re-sentenced to a parole-type range of years in order to do it right and fairly.
And second, those under the parole system remained under the parole system leading to the creation of what has become the Prisoner Review Board. In addition to their other duties, the PRB is responsible for holding parole reviews for those inmates incarcerated under the parole system, or C# prisoners. Again, if Illinois were to adopt a parole-like sentencing structure, fairness and precedent would dictate that those serving determinate sentences would remain under that system while newly incarcerated inmates would be sentenced to indeterminate sentences. And of course, the sentencing guidelines would again be restructured in order to increase the number of years for an offense in order to accommodate the parole system which would need to increase dramatically in order to be effective, adding to the costs to the State.
But what would be the harm, prison activists say, in simply making long-term prisoners eligible for parole after a certain number of years, say twenty? The harm comes primarily to the victims' families who will suffer a heavy blow from having to dramatically change the way they live. In cases of determinate sentencing, where one knows the outcome and has essentially entered into a contractual agreement with the State, victims know what to expect and reorganize their lives accordingly. If those rules are changed, as in taking an inmate sentenced to a term of years and converting that to parole, victims' families must completely reorganize their lives, again. This leads to significant trauma and is literally a horrific experience for them. They have no appeals, yet the perpetrator of the crime that made them victims does. The inherent unfairness of this situation is undeniable.
This is not an issue if we are talking about prospective sentence reform. Although we do feel that for victims and society a determinate sentence structure is the best for reasons of economy, public safety, victim health, and fairness and equity across the board for defendants and victims alike, we would not object to some needed sentencing reform from this point forward for reasons of victim rights. You are not breaking your word to the victims in this case as they would know what to expect from the outset.
This is also less of an issue if we are talking about instituting a process other than recurring parole reviews. The Prisoner Review Board is not a court of law or part of the judicial branch, nor does it answer to any court, yet it is essentially in the business of re-sentencing prisoners. If a one time re-sentencing of individual inmates to a determinate sentence on a case by case basis were instituted after careful study and review by a panel of judges with input by all involved -- victims, the prosecuting State's Attorney's Office, the Department of Corrections, the inmate, and any other interested parties -- and using current sentencing guidelines for comparable crimes, it would address the situation with a minimum of trauma on the victims' families. This would be so much better than sentencing a victim's family to a lifetime of annual parole hearings.
What continues to puzzle us is that there is a move amongst our activist brethren to push for re-sentencing when victims are not so sure that it is warranted. It seems that long-term sentences have recently come under fire because of a renewed awareness of the use of Life Without Parole (LWOP), especially for juvenile offenders, and the number of prisoners who will will be living out their lives behind bars. Even so, LWOP sentencing, like the death penalty, seems to be declining as a sentencing choice for jurors.
It is understandable that inmates' families are intent on obtaining some relief and reduced sentences, but the activists we know are working from an ideological perspective and, in our opinion, are not always thinking globally. Re-sentencing should only be done in situations regarding true miscarriages of justice and over-sentencing. Some believe that the majority of lifers are redemptive individuals. Only a thorough restorative justice process, where possible, which we strongly support, could make that determination. Many victims, police, and prosecutors would say that is a naive view and that, in actuality, very few are. It is true that prisons are truly not set up to "rehabilitate" prisoners for the most part. In any case, Executive Clemency always is an option, although admittedly by its political nature it is not likely to be of use to the majority of those petitioning the Governor.
If we are to address the question of whether the LWOP sentence is ideologically flawed, we must also address the public safety issue for inmates that the activist and prison visitation teams probably rarely meet -- the unredemptive and sociopathic criminal. We agree that LWOP sentences should be rarely used and reserved for the worst of the worst. We also believe, along with many prison reform activists, that there are people who should never get out of prison.
Historically, the LWOP sentence has been set up as a deterrent as well as a punishment. For this reason, some who are not the worst of the worst have been caught up in its net. These are the inmates who may be more likely to show improvement over the years. Offenders sentenced on accountability, or being accomplices rather than the trigger-man, in our opinion may in some rare cases warrant a re-evaluation of their sentence. But this is a question of sentencing guidelines and over-sentencing and should be studied and appealed as such. This is not a "parole" issue, either.
If there are inmates who have truly been rehabilitated and are good risks for release, we most certainly should not try to find them by making all lifers eligible for parole. We should find them by other means. This is why we recommend that, if we as a society are going to change our minds about LWOP, we should roll up our sleeves and leave behind the patchwork solutions.
Along with a change in sentencing guidelines for the LWOP sentence in order to ensure protection from the worst of the worst and excluding all but them, we must institute an in-depth study of individual cases in order to find the best candidates and re-sentence them to a term of fixed years to put everyone on the same footing. This is not a "parole review," and it does not change the status of the inmate to make them eligible for parole. Have this done by judicial authority and use as many objective assessments and measurements as possible. And carry out the process in a way that will allow for the input of all who have a vested interest in the case. At the end of the day, the reviewing authority should be able to justify to a reasonable and objective victim that early release is the right choice for the right reason. This is the only possible scenario that would begin to approach acceptability for victims.
This, as opposed to simply opening the doors to parole for everyone as an easy fix and panacea for our consciences and transferring the problem to the Prisoner Review Board to sort out. For those who would want to sentence victims to yearly reviews of an inmate's case, we would also submit that a one time evaluation after twenty years or more of incarceration is going to be a pretty accurate snapshot of whether an inmate can or will change.
No matter what the course of action, consideration for the impact on the victims must be considered lest in trying to help one population, we wind up hurting another. An organization can't truly work for human rights if in the process it is violating the rights of another population. This is why communication and coalition building are so important to resolving problems of injustice. It is a harder path than outright adversarial efforts, but is far less traumatizing to all in the long run.
While victims are attempting in their own minds to become survivors, many inmates are attempting to be classified as victims. This is yet another irony in the field of penology. While we also believe in the redemptive nature of the human spirit, and know in our own circle several inmates that we feel are truly redeemed, there is more to releasing inmates than just having a good feeling about them. This is most likely the chief difficulty of parole boards across the country.
To get back to the question posed at the beginning of this essay, "On what moral grounds do you oppose releasing a person from prison who has conclusively demonstrated that he or she is no longer a danger to anyone? What moral purpose is served by keeping a person in prison forever?"
We would like to address the primary point on which the questioner seems to misunderstand us -- morality.
First, we do not oppose releasing someone from prison on moral grounds. When we oppose it, it is as an issue of practicality. Victims must have the opportunity to have a say in all hearings and proceedings related to their cases, including parole hearings. That's the law in Illinois. Asking them to go through this process frivolously is reprehensible and demonstrably damaging to the victim. A higher morality, if you will. Remember the basic tenet of the Hippocratic Oath, "First, do no harm."
Second, who is able to judge that an inmate has "conclusively demonstrated" their harmlessness? This is not an evaluation of objective evidence leading to conclusive guilt or innocence. It is a risk. A gamble. The Prisoner Review Board currently must evaluate the risks and come to the conclusion that a person is or is not a threat to society in order to recommend an inmate for release. No one while in the highly controlled environment of a prison can conclusively demonstrate that they are no longer a threat to others anymore than to do so outside of prison. Indeed, that is the nature of first offenders. None of us, even the most peaceful, can guarantee that we will never, ever commit a crime or hurt another. It happens all the time. It happened in Indiana in 2006 when a long-term inmate was paroled by the Kansas Parole Board and committed another murder months after his release. This, in spite of the fact that the parole board called him a "model prisoner."
But most of all we know that the parole model and indeterminate sentences have led over the years to wildly discriminatory, random and biased sentencing.
Add to that the recidivism rates as reported in the Bureau of Justice Statistics recidivism report - Recidivism of Prisoners Released in 1994 (the most recent report available) and you have an alarming statistic. Recidivism, as counted in re-arrest rates, of young released offenders is around 80%. Even for older, age 45 and up, released offenders it is 45.3%. Furthermore, the report states on page 11, "No evidence was found that spending more time in prison raises the recidivism rate. The evidence was mixed regarding the question of whether spending more time in prison reduces the recidivism rate." The Illinois Prisoner Review Board's 2005 Annual Report cites recidivism rates in Illinois as being over 50%. It is easy to see why victims, especially, are skeptical of the "guarantees" offered by prison reform advocates.
Will you take the released prisoner under your wing for a year? Will you be his support system twenty-four hours a day? Will you put your name, reputation, and life on the line to mentor and guide him as he adjusts to life on the outside? Will you be there when he rages about his inability to find a job and shows that he is so institutionalized so as to be incapable of taking care of himself in even the smallest matters? Have you read the letters we have received from lifers who are so terrified of the outside that they don't want to be released, even though they hold onto this hope as the only thing that keeps them going day to day?
Thirdly, to suggest that an inmate be released without doing the hard work of participating in restorative justice programs is patently irresponsible. Inmates should participate in a restorative justice encounter with the victims of the crime, if they are willing, or members of the victim community if the original victims are unwilling or unable to participate, as the best way to reduce recidivism and work toward healing for everyone involved. This is not an experience to be entered into lightly. Often it requires years of preparation on both sides to bring the inmate to a point of admitting guilt and responsibility and bringing the victim to a place of being willing to meet with the offender. Of course, not all victims or offenders are good candidates for this experience, but any offender who is not judged to be mentally or psychologically suited to this process is not going to be a good candidate for release in the first place.
Those who really understand the value of restorative justice, rather than those who simply give it lip service in order to use it only to the advantage of the inmate, know how valuable this process can be in helping the inmate come to a critical point in his understanding of how victims suffer because of his actions. No one can responsibly advocate for the release of a guilty offender without also advocating for the hard work necessary for restorative justice to work. And restorative justice programs cannot happen without victims. In fact, victims are the center of that process. Prisoner advocates who throw around the term "restorative justice" as a pseudonym for just "let them out" do not understand what restorative justice really is.
Finally, it is important to realize that incarceration is more than simply putting someone behind bars until they "grow up" or "finally get it." Incarceration also has an inherent punishment component that must be acknowledged. There are many in prison who have reached a point of redemption, yet they still must serve out their sentence in order to have the punishment fit the crime. Should education and training programs be in place for these people in prison? Absolutely. Should they be receiving regular group therapy and socialization experiences in order to better model their behavior? Absolutely. Should every effort be made to ensure that these people are also rehabilitated as well as incarcerated? We believe so, yes.
And yet, prisoners are being released without these proactive programs. It is no wonder that we are dealing with such high recidivism rates. Our proposal is this -- let's focus our attentions first on setting up prison programming before we start talking about releasing inmates on a large scale basis to our communities. Let's enjoin the Department of Corrections to implement programs that are demonstrably beneficial to reducing crime after release rather than putting the cart before the horse and working to release people who are not prepared or well enough to enter society again.
Ultimately, we hope for a day when prisons are no longer necessary because no one is being victimized. People behave towards one another as they should and the crime ceases to be a problem. Until then, we commit ourselves to being willing and available to do the hard work to make this world a better place, inside and outside.
We invite discussion on this topic and we encourage the establishment of a summit between all those concerned about this issue in order to move us all forward, respecting and enforcing the rights of all those involved.