During a hot summer day, daycare workers removed children from a van, except one -- Jazzmin Green. She was two years old. Sixteen-year-old Miesha Ridley was responsible for checking off the names of the children as they were removed. There was a mark next to Jazzmin's name. An hour passed before anyone noticed she was missing. They found her in the van unconscious -- still strapped to her car seat. She died from the heat. Miesha and two adult workers were arrested.
Miesha admitted to voluntary manslaughter -- it was time for disposition. Jazzmin's parents made it clear that anything other than prison for Miesha would be "unfair." They just buried their child and the pain was eating at them. During the hearing, Mr. Green shared these feelings of unfairness and asked that "justice" be done.
As I listened to Mr. Green's passionate plea to do what's "fair" for his dead child by exacting justice upon Miesha, I contemplated how its impossible to be fair and do justice under many circumstances -- this being one of them.
Restorative justice, for example, doesn’t work because its fair, it works because its not fair.
Now the contentious question:"How can a best practice be unfair?"
My mom taught me that "life is not fair," and the distinction between fairness and justice. In my 13 years on the bench, I have found some lawyers suffering this delusion. Fairness and justice are separate and distinct terms with different values and are not easily interchangeable although interrelated within the legal concept of due process. Justice cannot exist without fairness, but fairness does not always result in justice.
It’s not that my mom loathed fairness, she despised the way most people applied it.
Mom was notorious for quoting scripture and on the subject of fairness her favorite was Ecclesiastes 9:11--“The race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all."
Following the biblical quotation, mom began her train of examples saying, "If life were fair…"
The fastest runner would always win the race.
All businessmen and women who dealt honestly with their customers would get rich, while those who cheat and are deceptive would go bankrupt.
People who dedicate their lives to protecting the rights of others would be hailed as, while those who fight to keep an oppressive state would be viewed as villains.
People who live their lives applying the "Golden Rule" all the time would live long prosperous lives, while those who murder, rape, steal, and molest children have taken from them what they took from others.
The list in my mom's lecture goes on, but you get the point.
"Fairness ignores actions and consequences," mom would say. "It ignores who created the problem or issues, why they did it, and who will be affected."
Mom made it clear that fairness demands that we ignore competence because some people have and others do not; that people who struggled to create businesses should make no more money than those they employ because everyone is equal; and that awards should be equally dispersed to all because we are all equal.
"Fairness has no respect for achievement, no respect for effort, no respect for quality, no respect for intelligence, no respect for ability, no respect for motive -- and that is not justice!"
Fairness she said, "has no respect for the individual."
Fairness is the guidepost by which all people, regardless of their individuality, are treated equally to ensure that if accused of wrongdoing they will be placed on the same playing field to be guaranteed a fair hearing. We call this due process within the delinquency context as set down in Gualt.
The goal of our system of justice is to ensure that all persons, regardless of their race, ethnicity, gender, socioeconomic status, political and religious beliefs, or any characteristic for that matter, will receive a fair trial. In other words, all persons are equal despite the diversity of our citizens.
If adjudicated on the charge, the concept of fairness begins its transition toward justice -- we hope. Fairness, in the sense of equal treatment, should play a smaller role or else we risk missing our mark -- justice.
"We hold these truths to be self-evident, that all men are created equal . . ." is an axiom of legal distinction, not a maxim of general truth.
We are not equal in many ways, and it is those differences that must determine how we respond to a child.
I often get complaints why I treated one child differently than the other when they both committed the same crime together.
"That's not fair," a parent tells me in court when I respond differently to her child's co-defendant.
I try my best to explain why her son is not equal to the other -- age, education, attitude, family function, and other factors that can be protective or risk factors depending on the child and family.
If I did what was fair in Jazzmin Green's case, there could be no justice. I would be forced to ignore the individual characteristics of Miesha -- a young lady with applications to college. Miesha was on the road to success and it was up to me to keep her on that road -- not bump her off it.
Ironically, it was Mr. Green who opened the door to ignore what's fair and do justice. He said to me, "Judge, who will remember my child?"
The moment of judgment came. I told Mr. Green that no one will remember your daughter if we lock up Miesha.
"Miesha can help this community remember Jazzmin, but only if she remains in the community to work at it," I told him.
I placed Miesha on probation and ordered her to construct a memorial to Jazzmin to be placed in a public domain indefinitely.
On July 18, 2012, CBS Evening News filmed the Greens and Miesha together for the first time. Miesha presented them with the memorial quilt -- they all cried sharing stories of Jazzmin. The Greens told Miesha they forgave her. Miesha needed that forgiveness -- so did the Greens.
The quilt hangs prominently next to pictures of Jazzmin in the new juvenile justice center in Clayton County -- a reminder that forgiveness and healing is the key to restoring lives -- and a tribute to restorative justice.