Mark Osler — Humanizing Prosecution

Caitlin Morneau

Welcome to Encounters with Dignity, a podcast on restorative justice from Catholic Mobilizing Network. Here, we bear witness to the stories, learnings, and actionable wisdom of people putting restorative justice into practice.

I’m Caitlin Morneau, CMN’s Director of Restorative Justice, and your host.

This season we’re taking a close look at the U.S. criminal legal system through the eyes of those most impacted by it.

Together, we’ll unpack the connections between Catholic values and responses to crime that allow all those involved to understand the impact of the harm --- and do what is needed to make things right.

May it be so.

Today, we’ll talk with Mark Osler, a prosecutor, legal scholar, and professor, based in Minneapolis, Minnesota. Mark describes how restorative values, especially human dignity, story, and redemption can operate within a punitive, rights-based legal framework.

Building restorative justice into the criminal legal system takes many protagonists, from many angles. Mark provides a window into the unique role that system actors can play in transforming the legal system from the inside.

Today, you’ll hear Mark share from his experience working on sentencing reforms and clemency as yet another expression of restorative approaches.

Mark Osler is a former federal prosecutor, who currently serves as Deputy County Attorney for Hennepin County, MN. When this one year position is finished, he’ll return to his post as the Robert and Marion Short Distinguished Chair in Law at University of St. Thomas. Mark is also a distinguished preacher at two congregations in the Twin Cities.

Mark, it’s an honor to speak with you today.

Mark Osler

It’s my pleasure and I can't wait to talk about a lot of these things that we're going to cover.

Caitlin Morneau

Oh wonderful. Well you have had such an extensive career. You are nationally known for your contributions in the field of law in the classroom and the public sector. I think we could easily spend this whole episode talking about what brought you to where you are today, but to honor time I wonder if you could tell us about maybe three moments that kind of set your trajectory?

Mark Osler

Yeah, you know it's interesting, I've always said to my students that not all moments are equal, that there are moments that are turning points, that are pivots in your life and that, you know, often, that is God speaking to you, that there's this discernment that we need to have.

years from: 2000

Then I went to church and as part of that service, I put out my hands and took the eucharist and realized that this thing in my hand was the last meal of a condemned man, of someone who knew he was about to be executed. And it was just this startling moment where there was this commonality between, you know, this person who had done such a terrible thing, on the one hand, and then on the other hand, the savior who we looked to – that they both had this common experience. And that when Jesus said when you visit those in prison you visit me, he knew what it was like to be under sentence, to face that certainty of death.

And there's something deeply humanizing about that and challenging, too. And that is when I thought, “Well, I have to do something with this. There's something deeply spiritual about this.” That was a moment that really was a pivot point for me.

al prosecutor in Detroit from: 1995

I remember in one instance, the judge said, “Mr. Osler, what do you want?”

And I said, “Well, nothing more than mandatory minimum,” which would be 5 years for the drugs and 5 years for a gun that was under a seat cushion on an 18-year-old and there's no parole in the federal system.

And then she turned to the defense attorney and asked him, “Are you going to make your usual futile speech?”

And he said, “Yeah,” and he went on for 20 or 25 minutes explaining how this wasn't going to make any difference, how the crack this guy was selling was made out of powder cocaine that came into the United States as powder, was distributed throughout the United States as powder, within you know that city as powder and then was rocked up into crack by the least culpable person that now we were punishing more than anybody else. And what it would do to his community, the black community, as more and more young people were plucked out and probably sent back worse once they were done with prison because of the lack of rehabilitation in the prison system.

And eventually, they convinced me. And that's always been really striking to me, that I wasn't the audience for that. I'm sure that none of them ever thought, “Well, I'm going to convince the prosecutor.” But they did.

And one of the things I did was work against that 100 to 1 ratio and in a variety of ways. One way was that I started taking appellate cases and losing a lot. I must have been America's least successful appellate lawyer. I lost in the first circuit, the second circuit, the third circuit, in the eighth and ninth circuits on the same day. But in the end, that case from the eighth circuit, we got the Supreme Court to take it. And they overruled it. In the Supreme Court, there they said that judges could categorically reject that hundred to 1 ratio and impose a lower ratio.

The next day I went into work and I got a call from one of the judges in Detroit. And he said, “What happened to you? You know, I read about the case you had,” and I explained the futile speech. And he said, “Well, who gave that speech?” And I remembered a guy, Andrew Densemo was one of them, Rick Helfrick was another. But I mentioned Andrew. And he asked me a question that just stopped me cold, which was, “Did you ever tell him?”

You know I mean think about this, this is, you know, 13 years later after his futile speech, you know, I never told him I was pursuing this change in the law. And then here the law was being changed because of his futile speech. And so I did call him. And that's something that really struck me, which is that when we do the things that really matter as advocates, as parents, as community members, we often don't know what we've accomplished because people don't circle back. You know, only one person came back to Jesus to say, “Thank you for healing me.” And that is the way we are – that when we send a ripple out into the world, we don't know where it lands and what good it does.

And then the third thing is that, when that case came back, one of the people who called me up was a professor at Ohio State named Doug Berman and Doug asked me, “Mark, so what are we going to do next?” And I said, “You know, let's take 5 minutes and celebrate this a little bit before we turn to the next thing.” He said, “Now I think we need to do clemency, work on clemency.” And I, frankly, had never really thought about clemency other than in the context of the death penalty and community death sentences.

And so I looked into it. And I remember just feeling this wonderful sense of finding vocation. Because here was something – the pardon power – that is a principle in the constitution. The president can grant mercy – that is also such a deep part of our faith. And I thought, “Okay, this is the rope I want to grab onto and pull,” because it combines my own talents to some degree, I would hope, with the faith that motivates me. It was the first time in my life I'd ever felt it so viscerally. That just this incredible excitement about having those things align and be moving forward towards something that, in a secular world, was so built into what my faith directed.

Caitlin Morneau

Wow! Thank you so much for each of those stories, Mark, and how they paint the picture of not only what you've had the privilege of being a part of but also the way that you entered into each of those opportunities before you. I'd be curious to hear, was there a particular moment where you became aware of or learned about restorative justice as an approach that could be part of your toolbox as a lawyer.

Mark Osler

You know, I've never formally been involved in restorative justice practices but clemency is very much about restorative justice if we do it the right way – that is, if what we're granting clemency to is both the person who's done wrong and also advancing growth for the community and for the people who were victimized, if they were.

Restorative principles, more than anything, the reason that I find league with people who do that work, is it's underlaid by a deep sense of human dignity, that what we need more than anything else is to restore dignity, to recognize dignity, to see people as whole and full and valid. Part of the reason that I'm not a big fan of mandatory sentencing guidelines is because they become dehumanizing. They allow a judge and a prosecutor to simply have a numerical value and to assess that numerical value and that takes us so far away from human dignity, which begins with meeting someone's eyes.

Caitlin Morneau

Right. Okay, so shifting for a moment to another role you take great pride in, which is that of a teacher. As faculty at University of St. Thomas School of Law, what do you hope for your students to learn and understand about restorative justice as a part of their studies and legal career?

Mark Osler

Yeah, I do teach it. And one of the things that I use restorative justice for is a counterpoint for kind of the roughest edges of the criminal justice system, that when we see something, for example, like that 100 to 1 ratio, how unrestorative that was.

You know, certainly I don't want to discount the fact that, you know, something like someone selling crack does damage and in fact, when I had those cases, they called them victimless crimes. But I often found a victim to call at sentencing. For example, the woman living next door who is raising children who had to keep them inside instead of lettinging them play in the yard. That's victimhood. That's something where, you know, that person's freedom was limited in a really substantial way by what the person selling crack was doing.

That we need to look not only, you know, at what's in the complaint or the indictment. But what's in the community that's affected by things. And I think that's a point of view that's very much inspired by restorative justice that comes into my teaching. And also the interconnectedness. So often in criminal law – and in my current job I see this all the time – people who have been victims of crime become perpetrators of crime and vice versa. You'll have the same families involved in being traumatized and creating trauma.

Caitlin Morneau

Right, so how do we recognize those many layers of impact that the community feels and create processes where healing can interrupt those cycles of violence?

Okay, so, before we talk about your current role as deputy county attorney, I wonder if we could just open up a third facet of your vocational life, as a preacher. You’ve held distinguished preaching chairs within your own Episocpalian tradition and currently at a Covenant Church, while being on faculty at a Catholic university. Do you want to expand on other ways that your faith influences your approach to law?

Mark Osler

Yeah I mean I think that especially within the advocacy that I do, it's everything. I teach at a Catholic law school because I probably wouldn't be very good teaching any place else. I talk about Jesus, and I draw often from the remarkable intellectual tradition within Catholicism and I'm blessed to have really amazing colleagues to learn from, to bounce ideas off of, even those I disagree with.

The other thing, too, that has happened that comes from that faith part is that it's a great way to talk to people that don't agree with me. You know, it's this common basis. I've always said that in advocacy, your first job has to be to draw a circle that's around you and the person you're trying to convince and start in that circle, that point of commonality.

unborn child were murdered in: 1990

And we went to churches and mostly in the south and in death penalty states and we were able to engage with people about the death penalty, most of whom were for the death penalty. But to start from that common body of faith, to start from that set of stories that we all know and love and work from, was really a great experience. And you know it made for fantastic conversations as well.

I'll never forget one moment, we actually started out by practicing it at St. Thomas and one of my colleagues, Susan Stabile, played the woman caught in adultery in John 8, and as she was testifying, it was like she was transformed into this stricken person and it just changed the way that I see those things forever.

Caitlin Morneau

Now I want to zoom in on your current role as deputy county attorney for Hennepin County, which I know is about to come to a close, so curious to hear what this past year has been like for you and – in particular for our listeners – what what kind of hand have you been able to play in cases involving restorative justice? What does that process look like from where you sit?

Mark Osler

Yeah, you know it has been pretty fascinating. I'm the director of the criminal division, which means that basically all the prosecutors of adults, I'm supervising. It's a pretty big job. Now one of the things that happened is that last year the legislature here passed a new process for prosecutor-initiated resentencing which is a great opportunity for restorative justice and has a role for victims, including funding for people to work with the victims as part of the process.

Knowing how important this was going to be and how big this county is – Hennepin County is Minneapolis and its suburbs. So we have almost half of the criminal cases in the entire state in our office. And that means that most of the prosecutor-initiated resentencing is going to be coming through here. And I wanted to make sure that we set up a process that would be good and whole and vibrant and also be able to encompass the possibilities of this new process, including restorative practices, where we could employ them.

And so I got a grant for 600,000 to St Thomas and we were able to have two people that we placed at St Thomas who would do the initial evaluation of these cases and advise us on them and we're starting to see those cases come through now, which is pretty remarkable.

There's a lot of people for whom being resentenced isn't going to be appropriate this time but there's a lot of people where they've changed and things are different and very often what's fascinating is the people who were the victims of the crimes and the victims family members, if there were any, they've changed, too. Time does that.

I want to move much more towards a problem-solving approach. Rather than retribution being what guides us, where we can have problem-solving guide us. And sometimes that is going to mean incapacitation of the defendant. There's some people where to solve the problem, you do have to remove them from the community and we're not afraid of doing that.

But there's other times when there's other things, including restorative practices, that can help solve the problem. And unfortunately one of the things that I've seen from the inside again now is how structured our entire system is towards retribution to the exclusion of other ways of solving the problem.

Caitlin Morneau

Yes, I’d love to follow this problem-solving thread, because prosecutors are such key players in the US legal system. I imagine that many times the information that you have available doesn’t present as though the parties would be willing to participate in a restorative dialogue process. So, from your perspective, as a person of faith and a proponent of restorative justice working within the system, what options exist for offering a healing or problem-solving approach?

Mark Osler

Yeah that's such a great question because we do have an alignment problem between the way criminal justice is structured, particularly that it’s rooted in rights. You know, for example, the right not to incriminate oneself means that very often, defendants aren't willing to engage in restorative justice. And the rights that we've given victims often put them in a posture where they don't want to undermine their future testimony against the defendant if necessary. And that's deeply unfortunate.

But one tool that I think isn't used enough in those cases where we have that kind of an impasse is intermediaries. That if we can identify someone that can go to both parties in confidence and find out what the commonalities are. You know, I talked earlier about, how do we draw a circle around us and the other person where we're starting on common ground, literally a common principle, some common experience, a common culture, often, that if you can have the intermediary establish that, often It'll allow that next step to be taken.

Caitlin Morneau

Yeah, I really appreciate you describing that Mark. It really can’t be said enough how critical the preparation work is for a successful restorative justice encounter, but what you refer to here comes even before any formal preparation for dialogue. And that’s the work of building trust and making an invitation, just opening a door to the possibility.

And I think about how people with lived experience can serve as intermediaries, too. You know, there are legitimate reasons why it may not be possible or appropriate for the parties directly involved to come together, particularly if the person who caused the harm isn’t willing to admit responsibility.

But I’m really moved by encounters that involve surrogates – someone who has lived through a similar experience of harm who kind of stands in for the absent party. These can be hugely impactful and meet many of the same needs for those involved.

OK, so then, how do we expand our imagination around what restorative justice looks like. Mark, what do you wish that the general public and fellow system actors better understood about the possibilities for restorative justice?

Mark Osler

Criminal justice is, in the end, about the interplay between rule and story. We've got these rules that impose a box and we've got a story that can break us out of that box sometimes. Many of the rules that we have came from a story. There was some awful crime and so they created a mandatory minimum that now is straitjacketing people. Or the crime, you know, someone is sentenced under that and then through clemency we use their story to undo that rule.

One of my clients for a pardon, Jason Hernandez, just got his pardon from President Biden a couple weeks ago and his story is just remarkable. He was selling marijuana, then he started selling crack. He got caught. He kept doing it and he ended up getting a life sentence, you know, just for the nonviolent crime of selling crack in his neighborhood.

rote his clemency petition in: 2013

But what Jason did in the end is really remarkable. So, he used to sell marijuana in front of this little store. It was a cigarette and beer store. Went back, formed a nonprofit, bought that store and turned it into an oasis in the middle of a food desert that doesn't sell beer and cigarettes anymore.

You know, we've got this imbalance between rule and story in our system right now. We have a lot of rules but not enough impact of stories. And I don’t just mean the story of the defendant. It's going to be the story of the identified victim. Sometimes it's going to be the story of that woman who lives next door to the crackhouse.

And I think that really goes to the need for restorative justice because restorative justice is rooted in those stories because our relationships are rooted in stories. It comes from a position of faith, too, because that's what Jesus did. He taught us through parables, through stories and this was coming from a tradition that was rooted in rules. I mean, the paradigm shift that Jesus brought is striking and it was that shift from rule to story.

You know, over and over, when the Pharisees tried to trick and condemn Jesus by referring to rules, he reverted to story to humanize it, to bring it back to that place of human dignity and love for one another. And we have so little of that in the world in which I live, you know, this criminal justice system.

Caitlin Morneau

So, Mark I guess just to close us out, from where you sit, what do you think is the greatest need or invitation or opportunity to growing more widespread support of restorative justice? And what do you think everyday citizens and people of faith can do to make these opportunities more readily available within our criminal legal system?

Mark Osler

Well I mean, I think one thing that everyone can do is to employ restorative practices ourselves in our own broken relationships that we all have, that we have hurts that we've carried our whole lives. We've got people that we're still mad at. And if we can start by having that be successful. It's a lot easier to imagine it being successful in a societal level.

You know, people hear people like me and you talk about restorative justice and they think, “Well, I'm not a lawyer, I'm not somebody that has power over policy.” But we do have the power to do it in those little points of our own life and I think sometimes that does inspire us then to try to universalize it more, to allow it to be something that can be a tool to resolve differences.

You know, one thing that's really hard about restorative justice that especially we people of faith need to to think about hard, is that so much of criminal justice all around is rooted in rights.

For example, when we think about and talk about victims in the criminal justice system, we almost always talk about victims' rights. You know they have the right to this, the right to that. And we never talk about victims’ love. We're giving them the right to do something, right? I mean okay, you now have the right to go to court and watch the worst thing that ever happened to you be talked about. I guess that's a right?

But if what we really want to do is love these people who've been hurt, it's going to be a lot more than that. It's going to involve caring about the trauma, about providing services that relate to that, to being a community of love that cares for them beyond what they do in the courtroom or what's associated with the courtroom.

We're not going to get away from rights and we shouldn’t. But it shouldn’t be all there is when we talk about people like victims. It has to be beyond that. And I think that really, our faith points us that way every time.

Caitlin Morneau

Mark, thank you so much for this conversation and for your willingness to allow your deep faith to be visible and operative in your scholarship and advocacy, and teaching.

Mark Osler

Well thanks for the opportunity to talk about it. You can tell, I think these things are so important and I so admire the work that you and others do.

Caitlin Morneau

Well, thank you. Same to you.

When I think back on this conversation, I’m struck by the layers of transformation and their impacts. In Mark’s own journey the values of his Christian faith invited a conversion of heart within himself – which then had significant impacts in the lives of people involved in the cases he worked on and statues that were overturned.

As we talked about the interplay of rights and story, I couldn't help but think of the Catholic Social Teaching of Principle of Rights and Responsibilities as interconnected – which isn’t a framework for shame and rigidity, but rather of mutual love and obligation to safeguard one another’s wellbeing.

May we all be invited to seek out, and tell, the stories that give way to healing and transformation.

To learn more about Mark’s work, check out his books, “Jesus on Death Row” and “Prosecuting Jesus.” They’re linked in the show notes.

If you’re interested in taking action to support clemency for people on Death Row, visit our website, catholicsmobilizing.org, and sign up for our emails and monthly alerts to oppose executions.

I hope you enjoyed this episode of Encounters With Dignity. Be sure to subscribe to our show from your favorite podcast platform, or by visiting catholicsmobilizing.org/encounters.

To stay connected with Catholic Mobilizing Network and our mission to end the death penalty and promote restorative justice, follow us on social media or sign up for our emails at catholicsmobilizing.org/join.

Join us next month, when we’ll talk with Ainka Jackson at the Selma Center for Nonviolence, Truth, and Reconciliation. She’ll detail how restorative justice is essential to ending racism and violence in the city of Selma, Alabama.

Let us close in prayer.

Good and gracious God, thank you for this opportunity to come together, to be in relationship across time and distance. May this conversation remind us that every person has dignity because we are made in Your image and likeness - cherished and beloved. May we participate with one another in the redemption that you made possible by your suffering, death, and resurrection. And may we bear witness to your healing, restorative, transformative work in the world. We ask this in the name of Jesus Christ, your son. Amen.