Saturday, June 30, 2007

Chaos Theory and Restorative Justice

Twila Hugley Earle was introduced in Kerrville as the wife of Travis County District Attorney Ronnie Earle, who was an early adopter among prosecutors of restorative justice practices and who gave a plenary address I'll discuss soon. But after hearing Twila's presentation on "Chaos Theory and Restorative Justice," I think perhaps Ronnie might have been better introduced as her husband - she's quite a smart gal, and her presentation represented some deep, big-picture thinking that made me tell the Travis DA after her talk that Twila's clearly the brains of the outfit. ;)

What follows are taken from my notes, and like all these missives much of the language, even that's not in quotes, I paraphrased closely from how Earle put things. So here and elsehwere in notes from this conference, attribute any perceived eloquence to the speakers and all errors or misunderstandings to the transcriber. Her ideas, like Zehr's, Umbreit's, and several other presentations, reframed fundamentally how I and most people usually think about criminal justice, so it's worth laying the ideas out in one place as she presented them and I understood them.

Earle said she'd been attending conferences on crminal justice topics for more than 20 years, and became tired of hearing high-level practitioners, then she'd go home as a practicing social worker and sex offender counselor and try to implement them, only to discover that often she couldn't make them work. She heard the same frustration from others, she said. As a practitioner, she's less interested in theoretical arguments than in understanding what works and why.

A basic shift in science is driving the world we live in that can also inform how we approach criminal justice. Newtonian science is linear, mechanical, focused on cause and effect, she said - you know, the way lawyers, judges, journalists and engineers think.

The Newtonian worldview sees both change and order mechanically, but reality is more dynamic. Chaos theory offers an alternative.

Chaos theory is a mathematical concept that can be applied to human systems. The core focus of Chaos theory in the context of corrections policy is the study of "order," she said, giving insight into how to produce stable systems from a dynamic context. Chaos theory sounds like a paradox in name, but it's really the study of how turbulence transforms into order organically.

Chaos theory offers a framework when Newtonian models break down. It's not a replacement, but an accompaniment to Newtonian math and physics. It's not an either-or thing: Both are true, side by side. Linear, Newtonian cause and effect explains many things in the world, and simultaneously, for reasons that often appear ineffable at the time, other systems' stability can only be explained through models providing less certitude.

The world is moving from two dimensional thinking to multiple dimensions, three dimensions but even more. Three points is the smallest number of points with which you can surround something. Two points just gives you a line. There's the difference in a nutshell, from a mathematical point of view.

It's said that the social sciences lag 100 years behind hard science, and what was happening in the hard sciences 100 years ago? Basically, she said, Einstein's theory of relativity changed math and science forever. Similarly, today the social sciences must come to grips with ever-more dynamic, complex realities that don't fit into linear equations. As with chaos theory in math, it's not that reality can't be accurately described, but old ways of thinking don't always provide the right tools.

Only by becoming multi-dimensional can we operate in civilization's third milenium, she said, when societies' economies, technologies and even ideologies change rapidly and linear thinking can't always generate a solution. Restorative justice operates more along such a model.

Charles Darwin, she pointed out, did not say that the strongest or most intelligent species would survive, but those most responsive to change.

It's more difficult to create a dynamic program that's responsive to change than a one-size-fits all, top-down model, and many efforts didn't succeed because they couldn't meet dynamic sets of circumstances and needs. In the restorative justice arena, she said, programs that work usually have something to do with self organization and self governance. For that reason, she particularly liked sentencing circles, victim-offender mediation programs, and other RJ practices that contained a self organizing component.

Chaos theory is so named because of nonlinear math equations called chaotic equations. Equations where X never has the same value. This was thought to be meaningless – random. Then computerization allowed more complex graphing in three dimensions, and mathematicians found new patterns.

One such equation graphed three dimensionally produced massive figure-8 patterns but where the lines, in three dimensions, never touch. Mathematicians call holes in the figure 8, formed naturally and inexplicably in the graph, “basins of meaning.” The result's not like a machine, she said, more like a seemless flowing web of interconnectedness.

These recurring shapes generated through chaotic equations go way back in human culture before anyone was able to do such higher level math. Jung talked about spirals and their importance in human history, she said, and she had slides of images of combined figure-8 spirals strikingly similar to the "Lorenz" pattern she'd shown us dating back as far as ancient Babylon.

Fractals are patterns that exist in nature, which Earle said were characterized by "self-similarity of pattern across scale." Looking at a fractal in micro appears the same as in macro, she said, like a person standing between two mirrors who can see ever smaller images of themselves instead of a single figure. In the mind's eye, a fractal is a way of seeing infinity. The classic biological example is the human circulatory system, which is fractalized all the way to the finest capillary.

You can also use fractals to identify problems in a complex situation. Look at the pattern, go backwards, and often you'll find it's still there. You can see fractalized patterns even buried in the white noise from pre-identifiable patterns once you look back. It all begins to raise the question, "how deep is order?"

When you think about social problems as massive and intractable as crime and the justice system, she said, it's always important to determine whether it's possible to expand or reduce any suggested change to the appropriate scale. Fractals provide a good method for analyzing such otherwise paradoxical problems.

"Dissipative structure" is a form of organization that gathers energy from the turbulence of its environment, self integrates the energy into a form, then put the rest of what it needs back into the environment. The first applications of this in the hard sciences came from meteorology examining hurricanes, tornadoes, and funnels.

More controlled experiments were possible by analyzing patterns in streams of water that change dynamically over time. Newtonian physicists thought that was because something happened upstream, but even in controlled experiments, patterns in watter were found to occur naturally. Such patterns in water build toward tipping points, she said, in four distinct phases:

  1. No observable pattern at first.

  2. Pockets of order and patterns. Islands of order.

  3. Quite a few islands of order will have disappeared, others got bigger through “resonance” Some patterns catch on, others fall out.

  4. Almost all patterns have fallen out – only one, two, maybe three are left.

After that, she said, everything falls apart again with no observable pattern – or at least you can't tell what pattern. This is not the same as randomness. Scientists can predict there will be patterns but not what they'll be or their sequence.

In a Chaos theory model, conflict and turbulence aren't viewed as disrupting to the process but as their own source of energy and power. The Founding Fathers realized this when they created the separation of powers in the US governance structure. Conflict is a resource! If you don't have enough resources, but you have conflict and turbulence, those are energy - you have an potentially endless fuel supply.

New patterns and shapes emerge when you get enough turbulence to brings diverse points of the system into greater levels of interaction in a braiding effect, until they're in simultaneous or near-simultaneous action, then the pattern "tips" into a shape.

The classic example in water is a Vortex. You never see part of a Vortex. It's a pattern that's created because of a specific set of temporary interactions. This is one of the most common recurring fractal patterns. Even 80% of galaxies are vortices, though 20% are not. The spiral is ineffably hardwired into our system.

A society is a dissipative structure. So is a person. So is a whirlpool. People build toward change then hit tipping points. So do social systems. The trick is learning to integrate linear and nonlinear approaches, she said, to understand that both may be useful depending on the situation and application and making the right choice to avoid unintended consequences. This is why she likes restorative justice models with a self organizing component - because it allows a dynamic adjustment to the situation instead of just following a pre-set, perhaps inapplicable set of rules.

She looks for programs with natural, self organizing orders combining a few simple rules with randomness, wildness. There's not a universally applicable program or rules for practice. Each result must be appropriate to situation. Most successful RJ programs, she said, had these key elements:

  • Diversity of viewpoints – like diverse points in turbulence that interact to create the whirlpool. If you don't get "enough of the problem in the room" you don't have enough to work with to develop a stable pattern.

  • Interaction is required.

  • Mutual respect – this is the key leadership issue for facilitating RJ practices. Define a process that's conducive to the emergence of mutual respect. The most important thing a leader can do is set tone.

For example, she said, sentencing circles seem redundant sometimes, talking "around and around," but after just a bit, patterns form from the conflict. Most "circles" operate on consensus rules, meaning any one person can overturn the sentence (and send it back to the judge or jury for sentencing). The consenus requirement and creating structural rules to require listening help the process work. You can't know up front what a sentence will be, but the sentencing circle process reaches consensus 80% of time or more. Discussions in these settinsg dig deeper into causal layers you'd never get to under trial court rules, said Earle, giving richer information on which to base decisions and craft solutions.

These ideas can be used to create something, she said, but also to diagnose a problem: you can look at patterns in a system to see which one of those three things has a deficiency.

In Newtonian physics disorder is bad. But that kind of order is brittle because it doesn't make use of the energies causing disorder. The rules of power and engagement are changing. Conflict is a resource. Sometimes the answers aren't obvious, she said, and all you can do is "Make a pocket of order and see what resonates."

Earle asked participants to close their eyes and identify the image associated with "peace." Most were typical, calm, pastoral scenes. The dove, nature, etc. Most images of peace are low energy, she said, but real peace must have conflict embedded in it, will require conflict.

True peace, said Earle, must be designed to include, to embrace "turbulence."

11 comments:

Anonymous said...

Wow Grits....what an interesting perspective. Thanks for sharing....it is quite a good read!

Anonymous said...

Nice article. I'm very interested in the intersection of the "new sciences" and Criminal Justice. As a semantic quibble, perhaps you're more talking about "Complexity Science" or self-organizing systems research more than Chaos Theory....

Anonymous said...

Great article! Need to read a few more times to let it soak in completely. I'm glad I contributed to the trip to Kerrville. I am learning alot about restorative justice.

Thanks SH

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National Judicial Conduct and Disability Law Project, Inc. is proud to have as its distinguished commentator
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Texans For Public Justice
CONSTITUTION SOCIETY
Texas Criminal Defense Lawyers Assoc.
INITIATIVE FOR TEXAS
Texas Assn. for Justice and Legal Reform
Austin Black Lawyers Assn.
TEXAN'S RIGHTS
S. E. Texas Christian Home Schoolers
TEXAS FATHERS FOR EQUAL RIGHTS
Constitution Party of Texas
HUMAN RIGHTS LAW SOCIETY
We the People for Independent Texas
WE THE PEOPLE COALITION- TEXAS
Join Hands for Justice
PRISONER ACTIVISTS
South Texas College of Law
UNIVERSITY OF HOUSTON LAW CENTER
Litigation Skills Dept
PEOPLE'S LAWYER PROGRAM
Clinical Programs
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Tex Access to Justice Comm Intern Program
JUVENILE SUPPORT NETWORK
Public Interest Law Assn.
THURGOOD MARSHALL SCHOOL OF LAW
Legal Clinic
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SENATOR JOHN CORNYN (Staff Rep)
Senator Kay Bailey Hutchison (Staff Rep)
REP. LOUIE GOHMERT
Rep. Ted Poe
REP. SAM JOHNSON
Rep. Ralph Hall
REP. JEB HENSARLING
Rep. Joe Barton
REP. KEVIN BRADY
Rep. Al Green
REP. MIKE CONAWAY
Rep. Kay Granger
REP. MAC THORNBERRY
Rep. Ron Paul (Staff Rep)
REP. RUBEN HINOJOSA
Rep. Silvestre Reyes
REP. CHET EDWARDS
Rep. Sheila Jackson Lee
REP. RANDY NEUGEBAUER
Rep. Charles A. Gonzalez
REP. LAMAR SMITH
Rep. Nick Lampson
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Rep. Michael C. Burgess
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Rep. Eddie Bernice Johnson
REP. JOHN CARTER
Rep. Pete Sessions (Staff Rep)
TEX. STATE SENATOR RODNEY ELLIS
Tex. State Rep. Sylvester Turner
TEX. STATE REP. CRAIG EILAND
Tex. State Rep. Robby Cook
TEX. STATE REP. VERONICA
GONZALES
Tex. State Rep. Juan M. Escobar
TEX. STATE REP. ALLEN VAUGHT
Tex. State Rep. Ana Harnandez
9:00 a.m. - Welcome; Conference Overview; and

(1) Intro to Judicial Conduct and Disability Law:


Judicial Canon Violation(s);

Improper Judicial Bias;

Discrimination Against Protected Classes;

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A Judge's Apparent Mental and/or Physical Incapacity.



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- Consideration of Judicial Immunity;
- Pursuing Money Damages and/or Equitable Relief.
Mark A. Adams, Esq.
10:00 a.m. Presenter
and Audience Moderator
Dr. Richard Cordero, Esq.
10:30 a.m. Presenter and
Audience Moderator



10:00 a.m. - Unfairness and Abuse(s) of Process as Evidence of Judicial Misconduct


10:30 a.m. - Looking At and Beyond Your Record for Evidence of Judicial Bias, Collusion, and Coordinated Judicial
Wrongdoing


11:00 a.m. - Sharing and Discussing Questionable Judicial Conduct from Actual Courtroom Incidents
(AUDIENCE PARTICIPATION)

*To learn more about submitting your case for audience review, Click on Link Above for Registration and
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Thomas N. Todd, Esq.
Featured Speaker
Presenting on Wilkins
1:30 p.m. - Ensemble Lecture on Harnessing Public Scrutiny of Judicial Misconduct - (Zena D. Crenshaw moderating and
presenting)


The Implications of Matter of Wilkins, 777 N.E.2d 714 (Ind. 2002), for legal professionals, civil and human
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Anonymous said...

Texas Conference Registration
National Judicial Conduct and Disability Law Project, Inc.




Simply email us your
NAME and the NUMBER
attending with you.


Alternatively, you may call NJCDLP toll free:

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If you would like our conference audience to informally consider whether your case
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wrongdoing:




Briefly describe that evidence in your email registering for the conference;



Use only titles and last names in your narrative;



Provide only enough detail for the audience to understand what you want it to know. You need
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Anonymous said...

The current criminal justice system in Texas is not working! Leadership with the ability to embrace change will survive and the rest will be forgotten.

I'm in favor of taking the risk necessary to implement change because the status quo is so dysfunctional.

It is a real pleasure to read that people are really thinking hard about the problems and how to fix them. Thanks for your very readable explanation of current cutting edge thinking.

Mark Bennett said...

Scott,

Great post. We've arrived three thousand years late for "civilization's third millennium," though.

Gritsforbreakfast said...

Thanks Mark - again, all errors may be attributed to the transcriber. Since you say that, I must admit the speaker actually delivered those specific lines with more mathematical and poetic nuance than this recollection of her thoughts, even aided from notes, would indicate. As I recall she was making a play on words about multiple dimensions and entering the third milennium on the calendar that was lost in my clumsier rendition. best,

AustinContrarian said...

Be skeptical of math by analogy. Once math is untethered from a model, it's pretty useless.

That's not to knock Earle's ideas. Bottom-up, or self-organizing, systems are frequently more dynamic and adaptable than top-down, command-and-control systems. But math can't tell you when a bottom-up system is better than a top-down system unless you have a model.

Gritsforbreakfast said...

Good point, Contrarian, though personally (and I know I'm a bit of a weirdo like this) I think of MANY problems as math by analogy, and my own prose is often peppered with math terms used to describe social problems or situations. That's a personal quirk, not a reason to supplant skepticism, but it's interesting you'd mention it.

I think the key analogy is the ever-changing variable - in this case the human element in crime that is unique to each case. Patterns emerge in macro when justice is done, but not in a predetermined way because each person is unique - the variables always change.

Finally, I think Earle would agree with you that which approach to take can't be mathematically determined. But through experience we know the current criminal justice system is pretty messed up BECAUSE of its top down nature. I think at this point people are grasping at ideas for alternatives from every other field of human endeavor, and this is just a far-flung, creative example. best,

Anonymous said...

The Chaos Theory is alive and well in the "New" TYC! :)