Prosecutor Henry Shea brings mercy to criminal justice
By Amy Uelmen (Director of the Institute on Religion, Law and Lawyer’s Work at Fordham University School of Law in New York)
Working within the current U.S. criminal justice system, it is no simple task to heal the wounds of crime. While victims may serve as witnesses, the procedures and trial do not generally address the injury to relationships. For those who have been convicted, a system focused on punishment often neglects the delicate task of creating ways to help them express remorse and to reintegrate into the larger community. At a certain point in his 20-year career as a federal prosecutor, Henry (Hank) Shea, shifted gears. He took time out from his current work at the Holloran Center for Ethical Leadership at the University of St. Thomas Law School in Minneapolis, Minnesota to speak with Living City about this change.
How would you describe your approach to criminal prosecution in the early years of your career?
My initial approach was to hold lawbreakers accountable in an unforgiving way. I often took on cases against people of privilege who were viewed as difficult to prosecute because they were not “bad” persons: lawyers, doctors and bankers, many who were highly regarded and well known in the community. For me, nobody was above the law. As a federal prosecutor, I regularly would prosecute to the fullest extent of the law the crimes that could be readily proven, starting with the most serious crimes. I did not consider mercy as part of my job description. That was up to the court.
What brought you to change your approach?
I had already been working as a prosecutor for close to fifteen years when I realized that my zealous approach to white collar crime was not leading to an adequate solution for the victims, for the defendants, or for the community as a whole. I was doing what the law required, but not what my heart told me could be accomplished if I were to step outside the traditional role of prosecutor.
For example, in a fraud case, it can take years to return any stolen money to victims. In our office, we began to think outside the box, and the idea emerged to auction the fruits of crime such as cars or expensive clothing that had been bought with stolen money and turn the proceeds over to the victims, even before sentencing. This experience got my mind moving in a different direction.
Another limitation of our system is that restitution typically can be paid only to specific victims, not to the community as a whole. But for some crimes, such as public corruption and environmental crimes, the damage might be too diffuse to identify particular victims. I began to propose as part of plea agreements that funds be restored to the community as a whole; for example, we proposed that funds be used for a new roof for the senior citizens’ center, or for a food shelf or a domestic abuse shelter. This approach was not without controversy, but it opened the door for me to look beyond the traditional ways of achieving justice.
How did moving beyond the traditional role change how you saw those accused of crime?
During plea negotiations, I began to see that there should be room to talk about recovery and healing. This resonated with some defense lawyers, who also saw that even if their clients had made horrible decisions, they could still be redeemed, and that they still had something to offer to society. I realized that there should be ways to help people learn from their mistakes, so that some good could emerge even out of bad decisions and misconduct.
I also began to see that some defendants were genuinely repentant for what they had done, expressing a level of remorse beyond just that of recognizing their guilt. It occurred to me that they might want to tell others what they were learning from this process of reflection and remorse. In fact, one of the white collar felons (a former lawyer who had turned himself in) took me up on an invitation to tell his story to an audience of business and law students. The students could not stop talking about the presentation. As one student said, “I will forget most of what I have learned after I pass the bar exam, but I will never forget his story.” And now, after serving a lengthy prison term, this ex-offender is dedicated to making a difference in our community, running a health care center for Somalis, one of the more underserved populations in the Twin Cities of Minneapolis and St. Paul.
Another person who was sentenced to serve two years in prison wanted to share what he had learned about his sense of entitlement and greed that had led him not only to hurt others, but also his family, “I want to share this to steer people in another direction.” One woman who had been convicted of a felony and sentenced to prison shared how she had to regain her faith before she could rebuild her life. She now works with a prison ministry program. When she shared her story, we entitled the program “Finding Faith through a Felony.”
What changes do you see in those who share their stories?
With each person open to telling their story to students or other groups, I make it clear that they should not continue to do this unless after each presentation they get something out of it. This is not entertainment. It’s about education and the process of regaining self-respect and believing they still have something positive to add to the community. They genuinely believe that others will benefit from their cautionary tales. Felons do not often hear applause, but it is a common response to our presentations.
Do you think the criminal justice system as a whole could learn from these experiences?
Justice and mercy are often seen in contradiction, but I believe we cannot have one without the other. The power of apology and forgiveness need to be integrated into our criminal justice system in more than a formalistic way of just pleading guilty. Apology and forgiveness involve more than saying “I am sorry.” Words are the easy part, but restorative actions that remedy harms and cause improvements in the lives of others are the true measure to getting on the road to recovery. Further, before someone can be rehabilitated and receive forgiveness from others, they first of all need to learn to forgive themselves. Our current system does not address those needs.
You came to these insights after many years as a prosecutor. Could you offer a shortcut to those who are at the beginning of their careers working within the criminal justice system?
All people, including criminal defendants, need to be recognized as human beings regardless of what they have done. We need to punish the wrongful act, but the actors, often broken people, should not be seen as faceless statistics. The way our criminal justice system is set up and strained for resources tends to dehumanize the person. In every step of the process, from charging people with offenses, to the process of receiving a confession, to sentencing and incarceration, we need to remember that most of these people will eventually be rejoining the community as our fellow citizens. If we give them a chance to accept full responsibility for what they have done, they often will try to redeem themselves. We need to think much more creatively about how we punish people, and work to develop a concept of community corrections and restorative justice, which enables offenders to make amends and reconcile with the community at the earliest opportunity.
Hank Shea, Minneapolis, is a former assistant U.S. attorney and a senior distinguished fellow at the University of St. Thomas School of Law (www.stthomas.edu/ethicalleadership). This article was published in Living City in May 2010.