More Thoughts On The Search for Restorative Justice

Rita Bender

Rita Bender, in red, at Northeastern University School of Law with participants of CRRJ's April 2007 Conference, "Crimes of the Civil Rights Era"

In 2005, forty-one years after the murder of Michael Schwerner, James Chaney and Andrew Goodman in Philadelphia, Mississippi by a conspiracy of Klansmen that included the Neshoba County Sheriff and his Deputy, Philadelphia and Meridian police, Philadelphia jailors, state highway patrolmen, and other locals, one man was brought to trial on state murder charges.  Edgar Ray Killen, by then eighty-one years old, was convicted, not of murder as charged, but of manslaughter, for his role in organizing the killers and orchestrating the plot.  He is serving three consecutive 20 year terms.  Likely, he will die in prison.

Two years later, in 2007, I spoke at a conference on Crimes of the Civil Rights Era, organized by Northeastern Law School and Harvard Law School.  That paper is posted at this website.  In that paper, I attempted to examine both the importance and the imperfections of the criminal prosecution of a cold case, which prosecutorial attempt occurred so many years after the crime.  I will not repeat my thoughts here, only to say that I still believe them to be my best statement of what I perceive to be both the significance and the burdens of such a criminal case.

Now I look at the work which has been done recently to bring a civil damages case against responsible actors in crimes of the past.  The federal civil case brought against Franklin County, Mississippi for complicity in the killing in 1964 of Henry Dee and Charles Moore, by virtue of the county officials’ knowledge of the Klan’s activities, tacit encouragement of frequent violence against black residents, and failure to investigate the kidnapping at a point when the murders might have been prevented, was an effort at bringing some measure of restorative justice by a route other than a criminal prosecution.  Indeed, one of the killers of Dee and Moore, James Seale, had finally been tried and convicted of his crimes in 2007.  The other known participants in the kidnap and murders were by then deceased.

The civil suit brought on behalf of surviving family members by the Northeastern Law School Civil Rights and Restorative Justice Project focused upon the responsibility of the County, and when the case was ultimately settled in the summer of 2010, the County, through its insurer, paid monetary damages to surviving family members of Henry Dee and Charles Moore.  Was this lawsuit, and might others like it be useful mechanisms in the search for restorative justice?

What are the goals of such a civil legal action?  Is it not, as with cold case criminal trials, an opportunity to finally allow some measure of the truth to be told? Can a civil case provide a vehicle for the community in which the wrongdoing occurred to confront its complicity in willingly permitting repeated brutality and injustice, and by all the years of silence, denying responsibility?  Can there ever be healing of the society without acknowledging the wound and attempting to bind it up?

Is it possible for such healing to flow from a civil action?  There are important differences between a criminal and civil trial.   While the accused in a criminal proceeding may enter a guilty plea, thereby avoiding the public trial, with witnesses testifying openly before the entire community, it is extremely unlikely that an individual accused more than forty years after the crime occurred will assume that a finding of guilt is inevitable, and that he should therefore acknowledge his guilt without putting the prosecutor to his proofs.  Thus, a criminal case is an opportunity for public confrontation of the community for its silence and complicity since there is likelihood a trial will actually take place.  That trial may create the opportunity for communal acceptance of responsibility, for catharsis, for surfacing of psychic injury, and thereby perhaps for some restoration both for individuals and for the society.

In a civil suit, the opportunity for a public airing and confrontation of the events may be procedurally more limited than in a criminal trial. The investigatory and “truth-telling” process will probably be, at least at first, in the form of civil discovery.  While witnesses can be required to testify under oath in both written answers to discovery requests and in sworn deposition testimony, this process is largely shielded from public view. A defendant who also has unresolved criminal exposure may assert the Fifth Amendment privilege against self-incrimination, and thus, avoid testifying in the civil case.  Civil discovery does not have the potential for public catharsis that is possible with a criminal trial.

Then there is the problem that most civil cases settle out of court.  The available remedy will be the payment of compensation to the injured party or his surviving relatives.  The defendants, if governmental entities, may be insured for some or all of the damages.  The insurer has a significant interest in reaching a settlement, rather than taking the chance of a greater damages award at trial.  As a result, settlement without a public trial is a more likely outcome than in a criminal case.  Without the trial, the opportunity for confrontation and communal recognition of the evil perpetrated may be lost.  The family members of the victims may receive some monetary award as a result of a settlement, but such money does not likely provide much by way of solace or meaningful compensation. Indeed, settlements usually contain a disclaimer of any fault or responsibility and merely recite that the settlement is offered to resolve a disputed case and to avoid the costs and burdens of a trial. Even if the amount of the settlement is some indication of the seriousness of the case, the amount is usually shielded from public scrutiny by the confidentiality provisions in the settlement agreement.  Certainly family must obtain some satisfaction in the knowledge that there is finally some recompense for the horrendous wrongdoing, and this should not be discounted.  But is the larger populace able to reach some moral understanding from the outcome?
There are, of course, other reasons for a civil law suit.   There may not be surviving individual criminal actors remaining to prosecute.  Furthermore, because a criminal case is limited to the specific question of guilty action of the individual defendant, the evidence adduced cannot address the more systemic and societal responsibility for the violence.   And, while the public officials who engaged in these enterprises are long since gone, the governmental entity continues to exist, with the obligation to require good conduct by appropriately training, supervising and disciplining its law enforcement officers.  The failure of these governmental functions may be lessons learned from the successful litigation of the civil case. In some cases, it may be possible to show that the violence was the direct consequence of governmental policy.  Indeed, although James Seale was tried and convicted, the civil damages action in the county was brought precisely because the government has obligations to its citizenry which go far beyond the criminal conduct of the individual wrong-doers.  Those lessons and the messages of responsibility can well extend beyond the boundaries of an individual county or municipality.

It is important to recognize the difficult legal burdens in bringing civil cases after all of these years.  Unlike a murder prosecution, where there is no statute of limitations, any cold-case civil action will be confronted by a vigorous statute of limitations defense.  In some cases, this defense will be insurmountable.

As with cold-case criminal prosecutions, the proof problems in civil cases can be daunting.  We are running out of years to have the benefit of live testimony in actions either against direct perpetrators of the crimes or, their governmental supervisors and administrators.  Records disappear and memories fade.  Perpetrators and witnesses die.  We need to be realistic that the opportunities for any of these cases are increasingly limited.
Restoration of society involves acknowledgment of past injustice, and steps towards remediation.  Civil lawsuits represent one potential avenue towards the goal. As with cold-case criminal prosecutions, the ability to pursue these civil cases will further diminish with the passage of time.  The cases must be brought promptly, lest the possibilities for healing and societal restoration are lost.

Each of these cases, whether in the criminal or civil forums, or both, have unique facts and circumstances to be carefully weighed in deciding if legal action has any hope of success.

The Killen prosecution, with all of its limitations and shortcomings provided an opportunity for Philadelphia, Neshoba County and the wider Mississippi community to confront a wrong of the past.  Now, the same thing has happened for Franklin County and for the State as a result of both the Seale criminal prosecution and the aggressive and masterful pursuit of a civil damages remedy against the County.

Hopefully, these cases will serve as beacons in the continued pursuit of justice, however long delayed but wherever circumstances make the attempt possible.

There is much to celebrate and much to learn from the successful conclusion of the Franklin County civil damages case.

Copyright © Rita L. Bender, 2010.  To be reproduced with permission of Rita L. Bender for the Northeastern University School of Law Civil Rights and Restorative Justice Project.