"Forgive me victim for I have sinned": why repentance and the criminal justice system do not mix - a lesson from Jewish law.

• Author: Bader, Cheryl G.
• Position: Criticim on Georgia Justice Projects unique approach of representation - Religious Values and Poverty Law: Clients, Lawyers and Communities

INTRODUCTION

The appropriate intersection of religious values and an attorney's functions as a legal advocate and a counselor has been hotly debated. At a recent conference on this topic at Fordham Law School, I had the pleasure of learning about the extraordinary work of the Georgia Justice Project ("GJP"), (1) a criminal defense organization with a practice philosophy grounded in Christian theology. (2) The GJP maintains a central mission of redirecting the lives of its clients to achieve moral religious redemption? A central feature of this practice is the GJP's encouragement of client confession, in the form of letters written to victims and their family members, whereby clients seek forgiveness prior to the adjudication of their criminal cases. (4)

Unfortunately, the criminal justice system is not an ideal setting to pursue religious redemption, (5) as our secular courts are not designed to advance a criminal defendant's potential goal of seeking absolution of sin. (6) In fact, under the American criminal justice system, a criminal defendant who asks a victim for forgiveness creates legally admissible evidence of his own guilt. (7) This evidence is admissible whether the defendant's motive is to pursue religious repentance and redemption or otherwise. (8) This provides a clear disincentive to seeking religious absolution through confession while a criminal case is pending. (9)

Taking another approach that avoids mingling of criminal prosecutions and repentant confessions, ancient Jewish law places a complete prohibition on the use of confession in the adjudication of a criminal case. (10) This prohibition bars both admissions of guilt in the form commonly known as a guilty plea and admissions of guilt in an extra-tribunal context. (11) The lack of any evidentiary value of confessions under Jewish Law stands in stark contrast to the high premium placed on an accused's confession under the American criminal justice system. (12)

This essay will critique the GJP's encouragement of confessions in the context of the secular American justice system via comparison with the treatment of confessions under ancient Jewish law. (13) Specifically, this essay posits that the absolute prohibition on the use of confessions in a legal system firmly rooted in religious values recognizes the danger inherent in combining the act of speaking of one's sins for religious penance with the use of such confessions in the criminal adjudication process. (14) The Jewish legal system avoids these inherent dangers by completely devaluing the accused's confession. (15) The GJP, in contrast, merges the process of seeking absolution with the criminal adjudication of the client's criminal case, not only running the risk of exposing the client to greater criminal liability, (16) but also risking devaluing the act of speaking ones sins to achieve true spiritual repentance by compelling confession as a condition to legal representation. (17)

The GJP has devoted substantial resources and energy to providing clients with quality legal representation and a wide array of social services and emotional and financial support. (18) I applaud the GJP for its holistic approach to lawyering and its commitment to the laudable ideology of restorative justice. Nonetheless, I intend to strike a note of caution to defense attorneys who utilize their role as legal advocate and advisor to seek religious repentance for their clients in the context of a secular criminal justice system that does not subjugate evidentiary efficacy to religious aspirations. (19)

Part I of this Essay briefly reviews the unique approach to representation provided by the GJP. (20) Part II discusses the role of confession in the context of the American criminal justice system. (21) Part III contrasts the treatment of criminal confessions under traditional Jewish Law with their treatment under the American secular system. (22) Part IV concludes with the contention that efforts to combine the process of repentance with the criminal adjudicative process are problematic from both a legal and religious perspective. (23) Jewish Law, by stripping any evidentiary value from the act of confession apparently favors the process of repentance through confession above the process of obtaining criminal convictions. (24) The American criminal justice system makes no such Accommodation. (25)

1. THE GEORGIA JUSTICE PROJECT

   The GJP is a private non-profit organization that represents indigent criminal defendants. (26) It has adopted as a principal philosophy a holistic approach to client representation, (27) and it provides a variety of services for the client, from continued education to job placement. (28) For example, in 1993 the GJP established New Horizon Landscaping, (29) which "offers an opportunity of job training and steady employment for [clients] served by Georgia Justice Project." (30) This commitment to broad based client problem solving is extremely admirable.

   One unique and perhaps more troubling aspect of the nature of the GJP's attorney-client relationship is that it is predicated on a contract whereby the client agrees to make major "life changes." (31) Before the GJP agrees to represent an individual, extensive interviews are conducted. (32) The GJP's social services staff assesses the depth of the client's commitment to make "life changes" before agreeing to represent the client. (33) Once the GJP decides to take on a client, the client must sign a contract whereby the GJP's continued representation is contingent on the client's continued attempts to make the lifestyle changes that the GJP determines are in the best interest of the client. (34) The first four weeks of this representation constitute a "trial" period during which the GJP determines whether to continue with its representation. (35) If the client satisfactorily completes the trial period, a "probationary" period begins. (36) The GJP continues to represent the client so long as he complies with his part of the agreement. (37)

   The GJP has a religious foundation, (38) and GJP lawyers engage their clients in moral discussions and encourage religious repentance. (39) According to the GJP's Executive Director Douglas Ammar, if the client is guilty, the GJP begins the client on a path to atonement. (40) The first step in this process involves the client's acceptance of responsibility for the crime he committed. (41) Subsequent steps include apology to the victim, or to family members of the victim; (42) reparation in the form of compensation or restitution to the victim; (43) and penance or "self imposed hardship" meant to repair the moral harm the client's action caused to the victim. (44) The final step is reconciliation. (45)

   The GJP's philosophy is based on the idea of restorative justice. (46) Restorative justice "focus[es] on healing for victims, reconciling victims and offenders, and reintegrating offenders into the community." (47) Client's confessions, made in the form of apologies, are seen as the vehicle through which victims can begin "healing the[ir] wounds" and clients can become "contributing members of society." (48)

   As a model of restorative justice, confession is a major underpinning of the GJP's philosophy. (49) The GJP requires, for example, that a "guilty client" write letters of apology to victims or family members of victims. (50) Their practice of encouraging, and in some instances requiring clients to write letters to victims and victims' families acknowledging their conduct and seeking forgiveness prompted a flurry of criticism from several members of the audience attending the conference at Fordham. This controversial practice is antithetical to a basic criminal defense premise that while confession may be good for the soul, it is generally not good for the case. (51) Most criminal defense attorneys will caution clients not to discuss a pending criminal case with anyone other than the attorney and would certainly advise against writing letters to victims expressing remorse. (52)

   Although the GJP boasts positive results in achieving non-incarceration sentences for clients in comparison with the local public defense office, (53) Executive Director Douglas Ammar acknowledges that a causal link to the practice of pre-adjudication confession cannot be established. (54) In fact, the GJP's non-incarceration success rate is more likely attributable to the nature and amount of resources the organization devotes to each individual client (55) and the limited category of criminal accusations it defends clients against. (56) As Douglas Ammar points out, the judges before whom the GJP appears are acutely aware of the broad support and social services provided by social workers and other staff members of the GJP, (57) including placement of clients in educational programs and job skills training. (58) The GJP even provides jobs for some clients within their organization. (59) These unique features of GJP representation most likely account for a court's willingness to provide alternatives to incarceration for GJP clients. (60)

2. THE ROLE OF CONFESSION IN THE AMERICAN CRIMINAL JUSTICE SYSTEM

   Extrajudicial confessions are generally admissible in the American criminal justice system, so long as certain basic requirements are met. (61) The Fifth Amendment Due Process Clause requires, for example, that a confession is admissible only if it is voluntarily made. (62) So long as the defendant's will is not overborne at the time he makes his confession, his confession is considered voluntary. (63) The Fifth Amendment protection against self-incrimination also limits the admissibility of extrajudicial confessions. (64) A defendant's confession is generally admissible only if the defendant knowingly waives his rights before a custodial interrogation begins. (65) The well known Miranda decision and its progeny set forth the requirements which law enforcement officials must abide in order to ensure that an...