Can we design a legal system that encourages accountability?

A few years ago social media was full of the video of Matthew Cordle’s confession, “I killed a man.”   News reports later confirmed that Mr. Cordle was indicted and was sentenced to 6 ? years in prison for aggravated vehicular homicide and operating a vehicle under the influence of alcohol.

The comments on the web seem to fall into camps: one praising him for his courage in taking accountability, another questioning whether his real motive was that the confession might lead to a shorter sentence, and a group of lawyers who are mortified that he made such a public pronouncement.

The bigger question raised is that of accountability and how that is treated in our legal system. 

Have we lawyers created a Universe where accountability is always something to be feared? 

Imagine: You’ve done something wrong. You’ve injured someone. What is your first inclination? Do you think, here is an opportunity to take responsibility? Do you explore how to do the right thing, to make the other person whole?

Or do you adopt the pose of the child whose hand is caught in the cookie jar? Do you attempt to avoid being caught, deny that you’ve done anything wrong? Are you concerned about the embarrassment and humiliation of being seen as a wrong-doer? Is it the retributive justice system that encourages us to hide wrong-doing?  Does your mistake call into question your goodness as a human being? If you make a mistake, do you believe that we're going to punish you and give all you have to the person you made the mistake with?

I sometimes teach a class on the dynamics of victims and offenders. We’ve all been victims at times, on the receiving end of some offense. I ask the class to first tell a story about a time they’ve been victimized. While the stories can become very intimate and painful memories are revealed, they are usually easy to tell. The listener can express compassion, empathy, and concern. There is a sense of validation, a wrong has been recognized.

Then, I ask the class to tell a story of a time they have been an offender. We’ve all offended someone. I give examples of my own offenses (not a comfortable conversation), but many of them can’t hear me. The air has left the room. Surely, they misunderstood the question.  I couldn’t possibly be asking them to tell a story in which they are the wrong-doers. 

But I am.

I hear deep breaths being drawn.  Fear and vulnerability seem tangible in the room. Often, someone argues that we shouldn’t do the exercise.

And eventually, the stories begin. Reluctant at first, they choose a story that isn’t too bad. So far, no one has confessed to killing anyone. Childhood offenses seem easier to share. I have had one brave family lawyer tell of vandalizing his soon-to-be-ex-wife’s car.  It helped him to understand the irrational behavior of some of his clients.

The room breathes a sigh of relief when the stories have been told. As we debrief, some of us are surprised we survived. We look around and realize that the world didn’t end. The police didn’t burst into the room and arrest us. We’ve told the worst (or at least one offense) on ourselves and lived to tell about it. Surprisingly, we also realize that we feel closer to this group, those who had been strangers an hour before. There is a sense of connection and vulnerability and realization that we are not alone. We’ve all done something wrong, we’ve all hurt others, we can be accountable without dying, inside or out.

We are conditioned to believe we must be perfect, while we should believe that our imperfections are teaching moments. If we have hurt someone, we must be bad people and we can’t bear the idea, can’t accept that we were “bad”. We justify and build complicated realities that make us the heroes, to avoid the negative label, as much for our own opinions of ourselves as good people as for others. We fancy ourselves the victims, even as others look to us as the perpetrators.

Yet, we are human.  Mistakes are to be expected. Accountability is the way to work through the mistakes.

How do we discuss accountability in a way that raises opportunity to be connected as imperfect humans, trying to do the right thing, but sometimes failing miserably?  How has our legal system undermined the ability to be accountable?

The victim-perpetrator-rescuer triangle is one of the most dysfunctional and common patterns in (at least) American culture. 

The design of our court system is basically the same:

Someone is injured by another. The injured one, the Victim, accuses the Perpetrator/Villain and runs to the Rescuer, the Court or a Lawyer. The Triangle, often called the Drama Triangle, is engaged: a dance from one position to the other. The Prosecutor takes the Perpetrator to trial and the Perpetrator then feels like a Victim. The Victim is unhappy about how the Court or the lawyer is handling the matter and turns on them, becoming the Perpetrator. The Court/Lawyer feels unappreciated and overworked and becomes the Victim. Etc. [For more about this dynamic, see, for example: https://www.joyofconflict.com/editor_articles/ConflictDrama-VictimVillainHero.htm]

So, how do we design a legal system that is not based on a dysfunctional model, one where accountability is expected as part of being a fully functioning adult? And how do we address issues of developmental capacity when a litigant/disputant is not capable of accountability?

I've personally been answering these questions through the Restorative Justice lens. What do you think?