#Furlong. The Path to Truth and Reconciliation

Yesterday, I received this powerful letter from Kenneth Young, a lawyer and a residential school survivor. The letter is filled with grace and simple truths.

Joan, it is a sad when people of influence who have done wrong fail to accept responsibility for the harm their wrongful actions have caused.

John Furlong must know in his mind that he did a lot of harm to young people he was entrusted to provide guidance. He will face further scrutiny in the coming months as the class action on day schools is worked on as to how it will be settled. If it will result in an agreement like the Indian Residential School Settlement with an adjudication process, I am sure the students he now stands accused of abusing will most certainly be claimants in which he will be most surely a person of interest.

My advice to Mr. Furlong is he reach out and call for a healing circle in which he will face his accusers and deal with the hurt and harm he has caused them, now to himself and those people who are most close to him.

If he chooses this path I believe his journey back to respectability will be one where he will be received by most people with open arms. It will be a journey, when taken with the right steps and attitude, that will bring true healing and reconciliation for himself and those he has harmed. Through this acceptance of what he did to those young innocent people was wrong John Furlong, I am confident, will learn the magnificence of the patience and kindness of First Nations people.

In saying this, I as a survivor of 10 years of Indian Residential School life, have been able to forgive the church and state for this very dark chapter in my life. It was not easy but the church and state reached out and this has helped me to carry on with my healing journey which will, I have now accepted will be a lifelong inner process. Mr. Furlong can do no less if wants to reinvigorate his life.

Is the Current Federal Government “Wrong on Crime”?

January 30, 2015: MP Joyce Murray’s “Breakfast Connections”

Thx to (wrongly convicted) Tom Sophonow for his presence here this morning….

Before addressing the topic at hand, let me tell you about one of the most egregious cases of wrongful conviction in Canadian history.

As I chronicle in my book, Innocence on Trial: The Framing of Ivan Henry, Henry was convicted in 1983 for 10 sex crimes; declared a dangerous offender six months later; spent the next 27 years in jail—-all of this for crimes he did not commit.

Acquitted in 2010, he has been waiting, going on five long years, for a dime in compensation. Instead of coming to grips with the inevitable fact that Henry, a senior citizen, is factually innocent, the federal and provincial governments continues to throw up legal roadblocks every step of the way. Meanwhile, Henry lives close to the poverty line.

Having tracked the injustices that befell Henry for almost four years, I conclude that every criminal justice stakeholder failed to protect and defend the “presumption of innocence” owed to every citizen—the police, the prosecutors, his own lawyer at the preliminary hearing; state-appointed psychiatrists, the parole board, Correctional Service of Canada; and the many politicians who were asked, over the years, to reopen his case.

The “presumption of innocence”, once lost, is almost impossible to restore. Absent DNA evidence, an iron-clad alibi, or the confession of the actual culprit, findings of “factual innocence” remain elusive. In Henry’s case, the state “lost” the semen samples and made no attempt to check out his alibi statement. As for the “actual culprit”, the state—for reasons I have yet to uncover—made Henry the scapegoat and let the real perpetrator go free.

For years, wrongful conviction inquiry commissioners have been recommending that, rather than treat claims of wrongful conviction on a piece-mail basis—as is happening with Henry—the British model should be adopted, namely the investigation of claims of wrongful conviction should be handled by a review agency independent of government. Further, it is that independent review agency, not the federal Minister, who should act as the gate-keeper.

“Change is needed,” said the commissioner in the David Milgaard case, “to reflect the current understanding of the inevitability of wrongful convictions and the responsibility of the criminal justice system to correct its own errors….

We are still awaiting the establishment of such an independent agency. Please do what you can to propel forward this important initiative.
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POLITICS OF FEAR

Is Canada’s new “punishment agenda” “wrong on crime?”

The philosopher Friedrich Nietzsche wrote:
But thus I counsel you my friends: Mistrust all in whom the urge to punish is powerful. They are people of a low sort and stock; the hangman and the bloodhound look out of their faces.

Sadly, the current Federal government is all hangman and bloodhound. To the best of my knowledge—I stand to be corrected—the word “rehabilitation” has never crossed the PM’’s lips.

What is the current policy, why is it wrong, and what can be done to convince Canadians to push back?

THE LEGAL FRAMEWORK

The Corrections and Conditional Release Act (CCRA), enacted in 1992, governs the Correctional Service of Canada (CSC).The CCRA strives—and this may surprise you—to, and I quote, “strike a fair balance between the two inter-related strategies of control and assistance—

“Control” meaning exercising reasonable, safe, secure, and humane control of offenders both in correctional institutions and under supervision in the community; and
“Assistance” meaning assisting and encouraging offenders to become law-abiding citizens.

The Act further provides:

The principal goal is public safety. This is promoted by proper control of offenders and with programs that help individuals rehabilitate. Rehabilitation programs are important because most offenders will complete their sentence and return to the community….

It is important to prepare inmates for a successful return to the community as law-abiding citizens. This strategy contributes to long-term public safety.

WAR ON CRIME

In 2011, the Tories removed the “faint hope” clause that allowed lifers to apply to a jury after 15 years for the right to an early parole hearing.

In 2012, they enacted Bill C-10: Safe Streets and Communities Act. As predicted, the Act has led to the need for more prisons; the incarceration of people for minor, non-violent offences; and poorer prison conditions including over-crowding, fewer “pro-social programs, and a higher incidence of “administrative” solitary confinement—Bottom line? Isolation of indeterminate duration.

The government, showing no signs of slowing down on its “war on crime”, has recently announced plans to make violent repeat criminals wait longer to achieve “statutory release.” As well, the Tories want to end the possibility of parole for some convicted killers.

Addressing the impact of Bill C-10 in his 2014 Annual Report, Correctional Investigator Howard Sapers said,

“Use of force interventions, inmate fights and assaults, offender grievances and segregation placements are all trending upward in recent years. Key indicators against which safe and humane custody may be measured show there is more crowding, more disease and more violence in federal institutions.
Prisons that are filled beyond their rated cell capacities are at higher risk of jeopardizing safety and security of the person. Unnatural or preventable deaths in custody (suicides, homicides, overdoses) are perhaps the most visible failing, but too many other lives either are cut short by premature death or are marked by injury.

An increasing proportion of the offender population is spending more of their sentence behind bars before first release…”

I have been asked to share this morning what I have learned—as a result of both my volunteer activities in prison and research for my book—about current prison conditions.

Increasingly, inmates are being deprived of educational and job training opportunities; hurdles are being erected to such things as creative writing classes, access to good quality books and book clubs. Access to programs, spiritual leaders and other mentors such as teachers and librarians is being restricted; prison farms are being shut down; access to independent psychologists is almost unheard of, etc.

After volunteering for 8 months, on Friday mornings, as a creative writing instructor at Matsqui Medium Security institution, one day I was “escorted”, out of the blue, off the property. Not a word of explanation; not a hint of an apology.

Months later, I was told the reason: I hadn’t taken a 3-hour volunteer training program, a program I had no idea existed…. I never went back. (I’ve talked to other volunteers who’ve had the same experience—the experience of not feeling wanted—especially among those who develop rapport with the inmates.)

When I developed pen-pal and “visitor” relationships with a number of prisoners, CSC treated me like an alien: On the one hand, to every appearance I was engaged in “pro-social” behaviour—behaviour aimed at assisting in the reintegration process. On the other hand, it was clear they believed I had some kind of ulterior motive.

I was once put on notice that I was writing to too many inmates; on another occasion, that I couldn’t be on more than one inmate’s visitor’s list, etc. When I threatened to go public, CSC backed down….

How many other families and loved ones would have the gumption to do likewise?

[One brief ray of light: Though I expressed frustration at the Joyce Murray breakfast that CSC appeared poised to reject my offer to donate my book to every federal correctional institution in Canada, they have now said I may. Needless to say, I would have gone public had they not.]
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LIGHTING A FIRE UNDER OUR CITIZENS

A. The Problem

By hyper-focusing on the rights and interests of the “victim”, our prime minister plays into what Dan Gardner has called the “science and politics of fear.”

In his excellent book, Risk (2008, Virgin), Gardner writes that humanity has never had it so good. Most people around the world are better off and will live longer than their ancestors.

But instead of being relaxed, we are scared that bad things will happen to us: nuclear war, cancer, child abduction.

Our brain anatomy, Gardner says, was fixed millennia ago—such that we are not equipped to process the complexity of modern living, especially where risk is concerned. We hear about a terrorist attack; we see the gruesome consequences on TV and, before we can calculate the probability that we personally will be blown up, our brains have reacted as if we are being charged by a rhino: no time to think! Run!

If you think you don’t believe everything you see on TV, he says, it doesn’t matter. Your Stone Age brain has processed the images and is using them to shape your opinions whether you like it or not.

“It could have been me” is a common response to news of a disaster, although usually the mathematical probability of it actually having been you is infinitesimal. FEAR SELLS.

The only solution, Gardner says, is to think more, think harder—The primitive part of our brains might be open to seduction by alarmist politicians, but, given enough time, the rational part can step in and stop us from going all the way.

Alas, if only re-programming were that easy…

Ask yourself: Are you a “free-range” parent or grandparent—content to give children as much freedom as possible, for example, play in the park or walk home from school alone; etc? Or do you catastrophize—worry about the ills could befall them—abduction, getting hit by a car, getting lost, etc?

B. The “Right on Crime” movement: Shifting the narrative

According to Texas Republican Representative Jerry Madden, “It’s a very expensive thing to build new prisons and, if you build them, I guarantee you they will come. They’ll be filled, OK? Because people will send them there.”

Texas and California, among other jurisdictions who had started down the same “punishment” road down which our government is leading us, are now—realizing it cost too much and made their justice system worse—reversing direction.

The topic today is whether Canada’s new punishment justice policy is ‘Wrong on Crime’? Ironically, this “Right on Crime” movement-led by Republicans, no less—is building momentum in the United States.

In an article entitled “The Conservative Case for Reform,” dozens of high-ranking Republicans including Jeb Bush and Newt Gingrich write as follows:

“Too often the lens of accountability regarding government services has not focused as much on public safety policies as other areas of government. As such, Corrections spending is now the second fastest growing area of state budgets—trailing only Medicaid.

“Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending…. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders—making them a greater risk to the public than when they entered….

“An ideal criminal justice system works to reform amenable offenders who will return to society…

“Because incentives affect human behavior, policies for both offenders and the Corrections system must align incentives with our goals of public safety, victim restitution and satisfaction, and cost-effectiveness, thereby moving from a system that grows when it fails to one that rewards results.”

Viewed in the light of a system that “rewards results”, what sense does it make to remove the “faint hope” clause? Lock up low-risk offenders? Increase the time virtually every offender must spend behind bars?

From an economic perspective, does it make sense to deny forever the opportunity–not the reality—of parole to those convicted of certain first-degree murder offences? [Since the Joyce Murray breakfast, the government, anticipating court blow-back, has amended the bill so as to give judges the right to preclude parole applications for 40 (from the current 25) years.]

This despite Correctional watchdog Howard Sapers’ statement that 99 per cent of offenders released on day parole or full parole last year did so without reoffending.

Since the abolishment of capital punishment in 1976, the murder rate in Canada has been cut in half. Further facts:

—Canada has 1115 (first-degree murder) offenders sentenced to life, minimum 25 years. 203 have been paroled;

—Average cost to keep a man in Maximum security is $148,000 v. $35,000 on parole;

—40 years in jail would cost nearly $6 million for one person in Maximum security; $6 billion for 1,000; and

—In recent years, the website of CSC has described those serving life sentences as “The most likely to succeed on parole.”

The authors of “Right on Crime” point to the need take a principled approach to public safety. As they wrote, “Our security, prosperity, and freedom depend on it.”
Who would have thought that our Republican friends south of the border could offer their neighbours north of the ’49—neighbours historically smug about our supposedly “superior” criminal justice system—such invaluable insights?

As a wonderful prison chaplain once said to me, “Let he who has ears hear.” Let’s hope that we Canadians do just that.

Ivan Henry and Me. The Wrongful Conviction of an Innocent Man

Acclaimed writer Gary Ross has written a wonderful article about Ivan and me: WRONGED!

In it, Gary deftly underscores the indefatigable perseverance of Ivan Henry–four years out of jail (after 27) and still penniless. Bloodied but unbowed.

Could not the defendants, who continue to argue that he is the author of his own misfortune, advance him at least a pittance of money pending the outcome of litigation?

My book, to be published in September 2014, will prove his innocence.

Rape Victims and Post Traumatic Growth

All my life, I’ve been interested in why some people recover from trauma while others remain forever traumatized–stuck inside that one horrible event that forever after defines their life. My father, paralyzed from the waist down from polio in 1954, moved on to greater and better things. A sheetmetal mechanic by day, he applied the electronics courses he’d taken while in rehab to a night job fixing neighbour’s TV sets out of our garage. Such was his passion, and his interest in sharing it with others, my brother recently received the Order of Canada for his ground-breaking work in biomedical engineering.

It was while writing my book about Ivan Henry–convicted of ten sexual assaults in 1983; acquitted in 2010, after 27 years in jail–that my interest in the subject deepened. Though Henry is almost certainly innocent of all ten crimes–the likely perpetrator, Donald James McRae, continued, after Henry’s incarceration, raping countless other women–the courts in 2010 merely pronounced him “not guilty” as opposed to “innocent.”

(In 2005, DNA having conclusively linked McRae to three rapes in the ‘80s, he pleaded guilty to (only) those and received a five-year sentence. In June 2010, he was released at the age of 58.)

In this piece, I consider the impact of rape on the following three groups of victims:

  1. The three women inextricably linked through DNA to McRae;
  2. The “Henry” complainants: (a) non-trial; and (b) trial; and
  3. Jennifer Thompson (now Thompson-Cannino), the woman whose misidentification of her attacker led to the lengthy incarceration of an innocent man, Robert Cotton.

Two questions that arise are

  • what factors bear upon one’s ability to tilt towards “post traumatic growth”; to fall up as opposed to down? How is it that some victims are defeated by trauma, whereas others–for instance, Viktor Frankl, a holocaust survivor–are able not just to overcome but, indeed, to defeat adversity; and
  • doe the alleged perpetrator’s “criminal law” outcome affect the victim’s ability to recover from the crime–e.g., does it matter whether (a) the perpetrator’s factual guilt is conclusively established (McRae); (b) he is, like Henry, merely acquitted, not declared innocent; or (c) his factual innocence is, like Robert Cotton. conclusively proven?

In his excellent book, “The Happiness Advantage” (2010; Random House), Shawn Achor explores this very subject. Achor says that, on every mental map after crisis or adversity, there are three mental paths:

  1. One that leads you toward further negative consequences;
  2. One that keeps circling around where you currently are; and
  3. The “Third Path”—one that leads us to a place where we are even stronger and more capable than before the fall. Instead of falling down, the victim actually “falls up”.

Citing psychologist Richard Tadeschi’s empirical study of “post-traumatic growth”, Achor notes that the results of that extensive research show that trauma such as military combat, refugee displacement, and physical assault can spur growth in many, many individuals.

Of course, not everyone is able to “fall up” after great suffering. What distinguishes the people who find growth versus those who do not? According to Achor, “the people who can most successfully get themselves up off the mat are those who define themselves not by what has happened to them, but by what they can make out of what happened. These are the people who actually use adversity to find the path forward. They speak not just of ‘bouncing back’, but ‘bouncing forward’.”

Is it possible for victims of rapes to move past their anger; even past the mere regaining of their equilibrium? Is it possible for them to emerge stronger, more self-actualized, than before? Secondly, is the criminal law outcome—guilty, not guilty, or innocent—relevant to that question? Where there is a real possibility, or, indeed, certainty, that a victim has misidentified her attacker, what if any role does the State play in helping or hindering her journey along that “third path”?

Beginning with the three McRae victims, in June 2005, Provincial Court Judge W. Kitchen wrote a lengthy sentencing decision after Donald James McRae pled guilty to the only three counts (among dozens of virtually identical sexual assaults, including “Henry’s”) wherein DNA testing confirmed that perpetrator spermatozoa matched his. The three assaults occurred in June/85, January/87 and March/87 respectively—roughly two decades earlier.

After noting “continuing terror and upset” on the part of each of the three victims, Judge Kitchen said, “Without wanting to dishearten the complainants, it really has fairly well destroyed their lives.” How sad, I think, that such should be so.

Turning to the “Henry” victims, is it a coincidence that the only two who agreed to be interviewed testified at Henry’s preliminary hearing, but not—because they were unable to identify their attacker—at his trial?

Though they both suffered for months thereafter—installing bars on the windows of their basement suites; afraid of being alone; experiencing prolonged bouts of depression, insomnia, etc.—each of them said that, within a relatively short period of time, she had moved on with her life. One graduated with a law degree the following year; the other participated, not long after the trial, in a “restorative justice” documentary, filmed in Seattle, USA, wherein several victims of rape and a number of (unrelated) “recovering” rapists spoke frankly—often, rawly—about their experiences.

“That exercise helped very much with the healing process.” she told me. After which she freely volunteered what a tragedy it was that, if Henry really didn’t commit the crimes, he spent twenty-seven years in jail.

Had this woman played an instrumental role in sending an innocent man to jail, would she have been so forgiving? Likely not. Perhaps only because her  conscience was clear was she able to say, “No way was I letting some pervert define my life.” Indeed, at a meeting wherein a number of victims of the “rip-off rapist” created a composite sketch of the attacker, she said, laughing to break the tension, “All I can remember is his pathetically tiny dink.”

At Henry’s sentencing hearing in November 1983, a number of trial complainants testified regarding the “severe psychological damage” he had inflicted on them. Sleeping with lights on ever since; eyeglasses, too. Nightmares. Weight loss, weight gain. Failing grades, lost semesters.… Self-blame, thoughts of suicide. Fear, fear, fear.

The following day, the trial judge ruled in part as follows:

Six of the eight complainants testified in these proceedings about how the attacks affected their lives. It is devastating enough to be assaulted, but it must be equally repulsive for them to endure cross-examination, at trial and on this application, by the very person who committed these deplorable acts. They are to be commended for seeing this matter through to the bitter end….

 

Society must be permanently protected from this man’s predatory behaviour. There are no redeeming features to rule otherwise. I therefore sentence him to detention in a penitentiary for an indeterminate period.

 

In response to letters I wrote to several of the trial complainants, two replied, angrily denouncing me and warning me not to harass or “re-victimize” them or the others. Though I made it clear that I had, as yet, no opinion regarding Henry’s guilt or innocence, they insisted that–acquittals notwithstanding–he was guilty as sin: “He got off on a technicality. Everyone knows that.”

On May 19, 2011, the B.C. Ministry of Public Safety and Solicitor General wrote me as follows:

Re: Victim Court Support Programs

 

Many of the complainants in this matter have advised that they do not want you to contact them or anyone related to them with regard to Ivan Henry or your writing project. This includes any form of contact, by way of example but not limited to mail, phone, email, in person, through another party. In case you are not aware, there is a ban on disclosure of the identity of the complainants.

 

I trust you will respect the wishes of the complainants and we ask that you make no future attempts to contact them.

Whether some others of the “Henry” complainants were willing to speak to me, I have no way of knowing. What I do know, based on the blasts levelled at me, is that, for at least two of them, the mental pain inflicted on them thirty years earlier is still very visceral and close to the surface.

In June 2000, rape victim Jennifer Thompson—her real attacker having just been arrested, years after another man. Ronald Cotton, was found guilty—wrote in a New York Times op-ed piece:

I studied every single detail on the rapist’s face. I looked at his hairline; I looked for scars, for tattoos, for anything that would help me identify him. When and if I survived the attack, I was going to make sure that he was put in prison and he was going to rot…. I knew this was the man. I was completely confident. I was sure….

 

Eyewitnesses can and do make mistakes….

 

Ronald Cotton and I are the same age, so I knew what he had missed during those 11 years. My life had gone on. I had gotten married. I had graduated from college. I worked. I was a parent.

 

Ronald Cotton hadn’t gotten to do any of that.

Many years passed before Thompson worked up the courage to go public; to expose her “crime”—that of mistaken identity—to the world. First, she had to confront the horrific ripple effects of what she had done: condemned an innocent man to jail for life. 4000 days of his precious life and counting. Had it not been for the scientific “magic” of DNA, he’d have rotted inside forever.

How did Jennifer come to forgive herself? Two years after the exoneration, she met Ronald Cotton and he forgave her. “I want you to have a good life,” he said, “we’re both victims of a flawed system.”

As Jennifer wrote in that same article,

Mr. Cotton and I have now crossed the boundaries of both the terrible way we came together and our racial difference (he is black and I am white) and have become friends. Although he is now moving on with his own life, I live with constant anguish that my profound mistake cost him so dearly. I cannot begin to imagine what would have happened had my mistaken identification occurred in a capital case.

Today, Jennifer Thompson-Cannino lives in North Carolina with her family. She speaks frequently about the need for judicial reform, and is a member of the North Carolina Actual Innocence Commission, the advisory committee for Active Voices, the Constitution Project, and Mothers for Justice. She writes and speaks regularly about the deficiencies inherent in eye-witness identification.

At the latest Innocence Network Conference in Charlotte, North Carolina, I asked Jennifer whether her message of forgiveness and redemption extends to the guilty as well as the innocent. “Absolutely,” she said. Her meeting with Cotton raised an important question in her mind: If he could forgive her, could she forgive Bobby Poole, the actual perpetrator? “Forgiveness is not about excusing the crime, it’s about power and letting go”:

I realized Bobby Poole still had a hold on me after all these years, and that the anger that lived in me had completely changed the way I looked at the world, at what was possible.

Shortly after meeting Cotton, she wrote to Poole, requesting, in the interests of restorative justice, a meeting. Poole died of cancer shortly thereafter, never having replied.

Closing Thoughts

What allows some victims to move on, and others to remain stuck in the past—in the grips of the horrible trauma they experienced? Obviously, as Shawn Achor says, positivity comes more naturally to some people than others. So many factors come to bear: family history and personal experiences; personality; social network; physiological make-up; etc.

However, Achor says that “happiness is not just a mood—it’s a work ethic”:

While we each have a happiness baseline that we fluctuate around on a daily basis, with concerted effort, we can raise that baseline permanently so that, even when we are going up and down, we are doing so at a higher level.

 

How sad that any of the trial complainants in the Ivan Henry case remain consumed, three decades later, by anger. What concerns me is whether the State–instead of focusing on paying Henry the compensation he so justly deserves–is enabling/encouraging that very mindset. By propagating the view that Henry is de facto guilty; by using that stance as a shield against his civil claim, the State is fostering a climate totally at odds with the victims’ pursuit of that Third Path.

On a related note, the Conservative government is supporting Bill C-479, a private member’s bill aimed, among other things, at giving victims better access to parole board hearings and requiring parole boards to make a greater effort to allow victims and their families to present statements during hearings or provide written or recorded submissions: http://www.theglobeandmail.com/news/politics/ottawa.

Fair enough that the victim has input at the time of sentencing, but the Conservatives should not be taking steps to enhance the victim’s role post-conviction.

The only two issues relevant to the early release of offenders—the rehabilitation (or otherwise) of the offender, and public safety—reflect, precisely, the two pillars of Corrections Services of Canada’s mandate. In other words, once an offender enters the Corrections system, his/her release plan are to be governed solely by those two considerations.

Victim Services in effect accused me of “re-victimizing” the Henry complainants. Surely, by moving to expand the role of victims at parole hearings even further than it already is, Bill C-479, if passed into law, would do precisely that.