CAN WE SAY THAT? A SUMMARY OF THE FIRST AMENDMENT FOR STUDENTS

With the wave of activism among American’s youth, I find that I’m getting calls from students, and their parents, about what free speech rights students have at school, and outside of school.  In the past, I've been involved in research and litigation involving the free speech.  During law school, I working as a research assistant on the issues of free speech and religion.  The first case that I argued at the West Virginia Supreme Court addressed the free speech right of the student body president to intervene when security officers began arresting students at a football game.  Since then, the laws have changed a little, but the fundamental meaning of the first amendment remains solid.  The government is limited by the First Amendment in when and how it may infringe upon any citizen's right to speak freely.

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Collaborative Divorce in the Mountain State: What the Parties say

In my last post, I described my excitement when members of my collaborative practice group worked with a couple to complete the first collaborative divorce in West Virginia.  I explained the benefits, from my perspective as a collaboratively trained attorney. After the hearing, we had a chance to sit down with the parties and talk a little bit about their experience with collaborative divorce.  

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A Collaborative Divorce in the Mountain State

Last month I had the great honor to work with a couple who decided to use collaborative law to help them file and finalize their divorce.  In the very first collaborative case in West Virginia involving attorneys trained by IACP and members of a collaborative practice group. Yes, the first one!  And a mere two weeks later, the second case made its way through the courts.

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What's the Difference Between Litigation and a Long Train Ride?

Last week, my daughter, my mother and I took a train ride together. Years ago, my mother added the ride from Toronto to Vancouver to her "bucket list."  After finding a great sale for winter trips, we planned the trip and departed on  January 29, 2018.  Little did I know that I was about to learn a little bit more about what it might feel like to be a litigant in the American legal system.

A friend and fellow mediator, Jeff Molenda, often quotes John R. Van Winkle's book, "Mediation:  A Path Back for the Lost Lawyer."   In the first section of his book, "The Litigation Train," Van Winkle claims that at the end of the twentieth century in the United States our litigation system is broken and has to come resemble a long, expensive train ride.  

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WANT TO HELP A VICTIM OF CRIME? THINK TWICE ABOUT SETTING UP A GOFUNDME ACCOUNT

After a tragedy, folks often gather to help out those who have suffered, any way  they can.  At one time, we probably would bake casseroles for each other and plan a church service.  Today, one of the things that I've noticed happening is that folks set up a Go Fund Me account to help cover medical or funeral expenses. 

These accounts often raise funds for the victims and may be helpful.  However,  I am concerned that sometimes they may not be as effective as other ways to help the victim or their families.  In fact, in some situations, the accounts may cause further harm to the family.

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Restorative Justice comes to West Virginia Schools

Last summer I had a call from the superintendent of schools over in Calhoun County, West Virginia.  Superintendent Tim Woodward was frustrated by frequent fights breaking out in the schools and the ineffectiveness of the school discipline system to stop them.  He was familiar with restorative justice, having worked in the schools near Harrisonburg, Virginia.   County prosecutor, Shannon Johnson, referred Mr. Woodward to me and we brainstormed a while on how we might bring restorative justice to Calhoun County.  We found great resources in Kathy Evans, a professor at Eastern Mennonite University who works on RJ in schools, and Jim Nolan, a WVU sociology professor.   The four of us collaborated and created a two-day program in January 2017 at the  Calhoun County administrative office 

This summer, Mr. Woodward accepted an opportunity to move to  Hancock County. Meanwhile, Kelli Whytsell, the assistant superintendent in Calhoun was promoted to superintendent.  In May, Ms. Whytsell and Mr. Woodward and I put our heads together and decided to create an intensive training on restorative justice at Canaan Valley with teachers and administrators from both systems. Jim Nolan again joined us for the training.  We were also  joined by Dashiell Quasebarth, a classroom teacher in the Virginia Beach area who uses restorative justice in his classroom.  

This was a situation when I learned more than the participants!  This  enthusiastic, compassionate and experienced group of professionals quickly caught onto the concept that restorative justice focuses on healing the harm after wrongdoing, rather than punishment for punishment's sake. Many of the Calhoun County participants began implementing some restorative practices in January.  With that experience came some successes.  One of the situations that impressed me most involved two parents who were drawn into a conflict outside of school, but had heard about the restorative circles and asked the school to help them work it out. The Calhoun teachers, administrators, and counselors had experiences with students who experienced a significant transformation in accepting responsibility for their wrongdoing during restorative justice processes.

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Most of the Hancock county professionals were new to restorative justice.  However, as they learned about the principles and values of RJ, they were able to identify ways how what they are currently doing is consistent with restorative practices. Many easily articulated finding ways to expand these ideas  further.  Several teachers were excited to learn about the paradigm shift, moving away from punishment towards an outlook that seeks to find what harm was done and then look for ways to make right the wrongs and meet the needs of the offender, victim and the community.  

Some teachers struggled with the idea of less authoritarian approach in the classroom.  Midway through the training, we did a role play.  Participants assumed roles as teachers, administrators, and students, including one very disruptive student who was having trouble learning.  During the role play, the participant’s  became perspective shifted.  Some said that the time we had together had caused them to reexamine the way that they had done things and they were excited and looked forward to a new approach.  

My favorite moment of the weekend followed some small group discussions we had about various challenges that we are trying to address with restorative justice.  When we reconvened, we formed two circles in a Margolis wheel.  Teachers from Hancock County sat on the inside of the circle, and those from Hancock on the outside of the circle as they shared the ideas that were generated from their small group discussions.  It was rejuvenating for me to see how such experienced and dedicated teachers could be so excited about bringing RJ into their work.

Many of the participants came into the training thinking that the restorative justice in schools would be another program to invest in, roll out and then replace in few years.  However, once they realized that RJ is more a "way of being" that allows the educators to integrate new ways into looking at wrongdoing in the educational environment into their communities.
 

RESTORATIVE JUSTICE IN BRAZIL (VIA HARRISONBURG!)

Last month I had the pleasure of attending two different events related to my work in restorative justice.  This post will address the opportunity to meet with a group in Harrisonburg. 

On the 24th I traveled to Harrisonburg the Zehr Institute of Restorative Justice, part of Eastern Mennonite University to participate in a workshop with Howard Zehr and Lorraine Stutzman Amstutz.  The Institute hosted a group of judges, social workers, and attorneys from Brazil who are working to bring restorative justice into their schools and judicial systems.  During their time at EMU, they had the opportunity to visit the Harrisonburg City Schools and the Harrisonburg Police Department and Prince George’s County where they could see RJ in action.

The participants engaged with area experts during meetings and panel discussions on topics such as Restorative Justice and Community Building with EMU faculty Kathy Evans and Carl Stauffer.

 Howard describes the principles of restorative justice to the participants from Brazil. 

Howard describes the principles of restorative justice to the participants from Brazil. 

We joined the participants on their second full day in Virginia, charged with discussing some challenging topics about Restorative Justice and the law.  We started the morning with Howard’s presentation about the principles and values of restorative justice.  Lorraine then addressed two particular issues:  restorative justice in crimes of severe violence and restorative justice and domestic violence. 

This presentation gave me the opportunity to discuss another difficult question ( but one of my favorites):  how can lawyers practice law consistent with restorative justice, with or without a program? This is the subject of my day-to-day work.  I’ve also nearly completed the manuscript of Outcome Blind, my book exploring the topic of bringing restorative justice into the everyday practice of law.  We can look at this complex, yet fundamental, question by starting with the principles and values of restorative justice.  Any activity, whether it be a meeting with a client, a mediation, or a sentencing hearing, may be evaluated against those principles. Each practice can be placed on a continuum, with those that are most restorative at one end (such as a well-run victim-offender dialog) and least restorative at the other (for example, an adversarial trial where the stakeholders are not permitted to participate in the proceeding.)   With this type of inquiry, any lawyer, in any place. can find ways to make any process more inclusive, more collaborative and focused on meeting needs. 

 Certainly, a highlight of the morning was a beautiful gift from Jurema Carolina Gomez, representing Tribunal de Justica Restaurative.  The handcrafted circle cloth includes their signature, a design depicting restorative justice in the center.

Certainly, a highlight of the morning was a beautiful gift from Jurema Carolina Gomez, representing Tribunal de Justica Restaurative.  The handcrafted circle cloth includes their signature, a design depicting restorative justice in the center.

The  judges, lawyers, prosecutors, professors and community members participating in the program, brought a great deal of wisdom, experience, and enthusiasm to the discussion.  Judge Leoberto Brancher is a juvenile court judge who has brought restorative justice into his courtroom and launched RJ based programs, through educational opportunities, throughout Brazil.  A retired judge, Isabel Lima, was instrumental in bringing the group to EMU, began using RJ in her courtroom in the 1990’s after being approached at a conference in New Zealand by a participant who asked how she was incorporating restorative justice in the classroom.  She continued to work in RJ and help draft the first statutory provisions about restorative justice in Brazil.  Judge Lima visited EMU last spring, and that trip lead to the development of the fall program that I was able to join.

 I am always excited to be in a room with folks who are as dedicated as I am to working for justice and peace.   This morning was no exception.  I found the morning particularly invigorating, witnessing the enthusiasm and creativity of the guests from Brazil who are working to find ways to bring the healing that comes with restorative justice to their communities.  
 

Victims Rights when a Loved one Dies of a Drug Overdose

Drug overdoses are epidemic.  Increasingly, prosecutors are responding by filing criminal charges.  Recently, charges were filed in Jefferson County, West Virginia after the death from a drug overdose.  Similar prosecutions and policies in favor or prosecuting drug dealers have been conducted in Virginia

Losing a loved one over a drug overdose is a terrible, tragic loss.  Friends and family members are filled with grief and sadness.  Often, we are also filled with unanswered questions and unmet needs. Those questions can swirl around and torment the survivors.  How could this happen?  Why did it happen?  Couldn’t anyone do some something to prevent it?  How can I help anyone else from suffering from this horrible thing happening to them?

The family may have many unmet needs, including  financial needs such as payment for outstanding medical bills, funeral and burial expenses, and counseling expenses for the survivors.   While the financial needs are not paramount, they may lead to further stress, anger and frustration.

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What are the “rights” of the survivors that may help meet these needs? 

West Virginia, unlike many states, does not include a constitutional provision providing rights to victims, but in the 1980’s passed a statute granting crime victims certain rights. 

Virginia has passed a constitutional amendment granting crime victims certain rights including a potential reimbursement of expenses through the crime victim’s fund. 

Maryland and DC also have very specific rights granted to crime victims.  The DC provisions are statutory and include a specific DC Crime Victims’ Bill of Rights. Maryland law includes a group of statutory rights for victims.  

However, law enforcement officials may not charge distributors with a crime.   Funds for out of pocket expenses may be still be obtained from the crime victim funds.  Most crime victim laws provide the victim’s family an opportunity to both apply for funds even when there is no prosecution or conviction.  Families may also meet with law enforcement or prosecuting attorneys to ask questions and determine why no formal charges were filed.

 

 

The following questions are those that many victims have asked me over the last several years.

What types of criminal charges are possible or have been filed?

In some situations, the drug dealer who provides an illegal drug that results in an overdose can be held criminally responsible.  The charges range from the illegal distribution of the drug to voluntary manslaughter to second degree murder.

What if the drugs are prescribed by a physician?

Increasingly, physicians are held responsible by the courts, particularly civilly,  for overprescribing pain medications.  Recently CNN published a story summarizing those legal actions. 

I’ve heard that my county sued the drug companies.  Is that true?

In West Virginia, county councils have initiated  litigation  against both pharmaceutical companies seeking damages for the opioid crisis.  These cases are similar to class actions and seek damages for what the crisis has caused to our communities.

Perhaps all of this court involvement may be confusing.   These statutes and constitutional provisions, as well as the potential fo civil litigation may help you get some answers and try to   Contact my office if you have questions about cases in West Virginia or DC.  We have represented many victims, including the family members of drug overdose victims, in trying to find answers and get their bills paid.  In most situations in West Virginia, you will not be required to pay any attorney fees unless there is a civil recovery.  If you are in Virginia, contact your county Commonwealth Attorney's office to have your questions answered.   If you are in Maryland, you may be eligible for a free lawyer.