Many people believe that it is an oxymoron to use the word holistic and criminal law in the same sentence since criminal law like many other facets of the law, operates on a draconian and hierarchical system.
Ironically, everyone in the American system of justice is presumed innocent until proven guilty but in practice it often seems like the opposite. I had a client who was charged with driving under the influence and causing serious bodily injury. The incident allegedly occurred one night at 2 a.m. and the only eyewitness who was yards away said she saw him get out of the driver’s side of the vehicle. My client denied he was the driver. He had just arrived in Michigan barely five days earlier and never drove in his life. He gave the name of the individual who was the driver but no one believed him because of this eyewitness. A year and a half later the case was dismissed against him. Most people don’t have the tenacity of this person. Fighting his case, he lost his job, his family relations were strained, and he was threatened that if he didn’t accept the prosecutor’s offer, the State would pursue state prison time. Most people under those circumstances would have taken the probation he was offered but he refused because he was innocent.
I would like to say this case is an anomaly but unfortunately it isn’t. Ninety to ninety five percent of cases across the country are resolved through plea bargains. Many have called the plea bargaining system, a broken system that uses intimidation causing many innocent people to plead guilty rather than face the possibility of prison or plead guilty to avoid longer sentences. So why do people plead guilty. Fear is often behind the motivation to accept a plea. Fear that their past will be brought up. Fear that if they lose at trial and the prosecutor’s threats of additional time could be a reality. Fear that no one would believe them. The lack of money, time, and the fact that many public defender offices are at maximum capacity are also substantial factors.
According to statistics from the University of Michigan Law School, wrongful convictions happen fairly regularly and what is more shocking is how many people actually plead guilty to crimes they didn’t commit. Often contributing factors are missing information, witness mistakes and lies, ineffective assistance of counsel, false confessions, bad or no forensic evidence, and official misconduct.
THE HOLISTIC APPROACH
Approaching a criminal case holistically means looking at trying to achieve better outcomes for clients, their families, and their communities. It means working compassionately with clients especially indigent clients, and being aware that the problems and challenges they face stretch further than the confines of the case before them. It can mean providing them with assistance, or, in a restorative justice approach, or a peace-making approach, it could be a process that supports the community healing from the crime, and rather than punishment, seeking not only the healing of the victims but also the offender. It’s about talking and asking how to repair the harm. In the peace keeping courts, it is about the exploration with the person accused about the root of his or her behavior, how it affected others, the harm it caused, accountability, and how to make better choices in the future.
Another area holistic practitioners, look at is the collateral consequences of accepting a plea. For individuals who are not U.S. citizens they can be deported for certain crimes. It can be a child who arrived here at the age of two and has never been to their country of birth or it could be a grandmother or grandfather whose entire family resides here and they have lived it for 30 years. For others, they may not be able to get a license, a job, or attend a university. As lawyers, we need to provide clients the collateral consequences of their plea so that they can make better and more informed decisions.
For the holistic practitioner, it is also educating the court, the prosecution, and challenging adversarial structures that aren’t working. Holistic lawyers humanize the cases before the court. We call for compassion. Ours cannot be a caste system or an assembly line straight to prison. The draconian nature of our laws must end.
What we lack in the criminal justice system is heart and the power to forgive and the ability to ask the why. Why is this happening to this person? Why did they do what they did? We need to speak these truths. Why do we punish people for pan handling when they can’t secure a job? Why do we punish with incarceration addicts or the mentally ill when they steal shampoo from CVS when they really need a program or help? Why do we punish children for making mistakes? Why are we disproportionately punishing people based on race and national origin? Let us acknowledge that we punish and we judge and let us find solutions for change. Not everyone is guilty because they are accused and for those that are, let us talk about accountability, forgiveness with a gentle heart, and providing resources so that they can make better decisions. Fairness is when we all treated equally and when you walk into the shoes of the other and understand their plight.
Let the words that are etched on the building that houses the Supreme Court of Michigan – Truth, Justice, Equality and Freedom – not be solely an aspiration that we all seek but let those words permeate and embody how we act and treat one another and how the law treats us regardless of race, gender, national origin, sexual orientation, age, or disability.