Mediation Offers a Viable Alternative

Stephanie and I disagree about almost everything. That’s why I couldn’t turn down couldn’t turn down her generous offer to engage her blog audience on an area where we might actually have some accord: criminal justice reform. Despite our squabbles during our time together on Vassar’s student government, we’ve always been united by a politics-of-the-possible approach to problem-solving. In this short post, I suggest criminal mediation as a judicial process that embodies that spirit of Poughkeepsie pragmatism. In sum: Criminal mediation programs should be expanded in certain circumstances and generally better understood by advocates of criminal justice reform.

To be clear, my topic is not prisons themselves. My topic is what comes before that—how people get to prison. I don’t advocate “abolishing prisons” (as the title of this blog suggests), just sensible solutions to make sure no one goes there, or is otherwise punished by the state, unless there’s no better alternative for society.

Before getting into the weeds of criminal mediation, let’s start with the big picture: In an ideal America, there would be enough courtrooms, judges, prosecutors, defense attorneys, and bailiffs to ensure that everyone who commits a crime has a full and fair trial. Every properly convicted defendant would be punished in some manner proportionate to his or her crime—and in a manner that moved beyond mere punishment and seeks to assist the victim(s), the community, and even the convicted defendant.

In reality, this methodical and holistic justice is still beyond grasp. Courts are overcrowded, many judges are underpaid, defendants are underrepresented by effective counsel, and prosecutors are overworked (and, I’d add, unfairly shoulder much of the blame for these systemic problems). If this were a law review article, that last sentence would have roughly a bajillion footnotes, but I’m sure readers of this blog will find those general statements unsurprising. These problems have only increased since financial crisis began; New York State, for example, saw $170 million cut from the court system budget last year alone, including nearly 1,200 employees. Courts around the country are being forced to close earlier in the day, hear cases more quickly, and render justice with a leaner staff. These cuts have undoubtedly impacted the quality and speed of civil and criminal proceedings.

So how can mediation help this situation? Mediation is a process that can conserve judicial resources, limit unnecessary punishment, and (some believe), offer a substantively better quality of justice. Outside of the legal sphere, “mediation” isn’t a common term. What is mediation? Imagine you had a dispute with your landlord over the amount of rent owed for your apartment. Your heat hasn’t worked in months, and your complaints about a leaky pipe in the ceiling have gone unanswered. Your rent is $500/month, and you stopped paying two months ago because of these problems. You believe you deserve a 50% discount off the $1000 you owe (i.e. $500 total owed) because of your inconveniences. What are your options? Option #1 is to go upstairs, sit down with your landlord, and talk it out. This would be a negotiation, and would cost nothing other than the time and effort it takes to talk. Option #2 is that he sues you for the rent, and you mount a defense. This means you both probably need to hire attorneys, which can often cost a substantial sum—in fact, it might end up costing more than the underlying dispute is worth. (What’s the point of getting $200 off your rent if you’ve spent $600 paying your lawyer?). A judge will end up deciding the case, often rendering a money judgment without equitable relief (that’s law-speak for: “you might get money, but the judge might not make your landlord fix anything”). The judge, who has never seen your apartment, will also render judgment based on laws that were written by other people who have never seen your apartment. The adage that “justice is blind” also means that decisions aren’t necessarily narrowly-tailored to your particular conflict. So you can see the problems involved in litigation.

Now consider option #3, mediation—an often cheaper and more holistic means of resolving a dispute. Mediation is essentially a negotiation (Option #1) that is facilitated by a third-party neutral (kind of like the judge in Option #3). Like a judge, the mediator is often a lawyer and also has no vested interest in the outcome of the dispute. Unlike a judge, the mediator isn’t typically empowered to make a decision. A mediator can’t say “Stephanie, you owe Brian $1,000. Pay up.” A mediator merely organizes the negotiation, digs for the underlying interests of the parties, and works to forge a compromise that everyone can live with. The best mediators are clever deal-makers, but deal-makers who allow the parties to direct the conversation and own the solution. (In this simple example, a mediator might arrange a compromise where the landlord agrees to make certain repairs within a certain period, and the tenant agrees to pay something between $500 and $1000).

The above example is a civil dispute—that is, a dispute between two ordinary people. Mediation is well-established as a process for settling civil legal conflicts, especially in small claims courts. How does the mediation process apply to the criminal context, where the “dispute” is between the state (i.e. the prosecutor) and a defendant? Criminal mediation is an opportunity for the defendant to sit down with the victim of a crime before trial. The victim is often a necessary witness and the individual to “press charges” against the defendant. The conversation between the victim and offender is facilitated by a trained third-party neutral, and not by a prosecutor. Unlike the landlord discussion above, the parties in a criminal mediation have the chance to speak about the underlying causes of the offense: Why did X break Y’s window? Why does A keep crossing into B’s yard? Is there an agreement that can be reached that can keep both parties satisfied without the state getting involved? In other words: What caused the negative past interaction, and what is likely to limit negative future interactions? The conversation is as much emotional, financial and psychological as it is legal.

This isn’t a totally new idea. Mediation has been used in the criminal setting since the mid-1970s, and today there are over 300 such programs across the country. But there is a renewed attention to programs in mediation and restorative justice among legal scholars over the past decade and especially after the financial crisis. A few limitations to these programs: 1) Criminal mediation programs usually handle misdemeanors (rather than felonies) like minor assaults, trespass, theft, and burglary; 2) because of fixed federal sentencing laws, individual states are at more liberty to offer court-annexed mediation; and 3) not all cases are appropriate for criminal mediation, such as those involving domestic violence or child abuse, for example.

Let me give a specific example of a fantastic non-profit organization called the New York Peace Institute. NYPI organizes pro bono trained mediators throughout New York’s courts and community centers for both civil and criminal matters. On the criminal side, you can read more about there programs here. Essentially, NYPI work with the district attorney to identify particularly “mediable” cases between complaining witnesses and defendants. With some limited exceptions, the sessions are confidential and nothing that’s said in the mediation will be shared with the prosecutor, defense attorney or court, and nothing can be introduced as evidence. If the parties are able to talk through the situation and reach some sort of agreement, the prosecutor, defense attorney and judge will also have a chance to review it. The prosecutor, as the representative of the state, often has discretion to simply drop the matter or place the case on “inactive” status.

Think about the economics of a small crime, like a man who slashed a former friend’s tire. The crime had a rough value of maybe a few hundred dollars—the cost of the tire itself, and the cost to the owner of getting it replaced by a mechanic. Now think about the economics of the resolution of that dispute—the time of the owner calling the police and meeting with the district attorney, the paperwork involved, the time the prosecutor will expend, the time the judges and court staff will spend… the list goes on. If jail was involved for the offender, even for a short period, think of the lost wages (and thus lost taxes). Think of the likelihood that violence could reoccur following the state’s involvement because of dramatically escalated tension between the parties. All of these costs far exceed the original cost of the offender’s bad act.

If this little case were successfully brought to a pro bono mediator, think about all the benefits. The parties, who clearly have emotionally unresolved issues, have an investment in sticking to the agreement they crafted since they’re the ones who created it. The taxpayers’ resources would be happily conserved.

But unfortunately, cost-saving mediation programs are facing massive budget cuts. In 2011, New York’s mediation centers saw 40-70% reductions in funding from the state’s Office of Court Administration, and the proposed budget for 2013-2014 includes yet another cut for ADR services to the tune of $400,000. In this economy, these cuts are understandable but short-sited, since these conflict-reducing programs save far more state resources than they take.

So here’s the take-away from this little post: For certain crimes in certain jurisdictions, criminal mediation programs are engines of potential. First, they save time—for defendants, for prosecutors, and for judges. Second, they save money—for the judiciary, the broader criminal justice system, and for non-profit groups who supply lawyers to those defendants who couldn’t otherwise afford them. And third, some would argue (me!) that mediation can offer substantially better quality of justice for all involved. By “better,” I mean a solution that is more narrowly tailored to the problem because its crafted by those involved (and not exclusively by legal norms).

I started this by noting that Stephanie and I are pragmatists. Advocates of dismantling the prison industrial complex, eradicating the school-to-prison-pipeline, and drastically amending federal sentencing guidelines all have their hearts in the right place. They’re picking up on very real problems. But these advocates are unlikely to see results, at least on a large scale, for decades. Expanding criminal mediation programs in urban areas for low-grade offenses is a great here-and-now approach to increase justice and lower costs. That’s the kind of pragmatism that Stephanie and I can both get behind.

Brian Farkas is a third-year student at Cardozo School of Law in New York City, focusing in Intellectual Property and Information Law. He is Editor-in-Chief of Cardozo’s Journal of Conflict Resolution and is a mediator in Civil Court in Brooklyn and Manhattan, as well as for the U.S. Equal Employment Opportunity Commission.

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Incarcerated Men Turn Out to be Good People After All

creek-rescue-600I’m generally pretty skeptical about the whole “danger to society” thing, so I was glad to see this story about three incarcerated men saving three children from drowning – covered by People Magazine, to boot. With the goal of (dramatically) reducing the prison population in mind, it’s nice to see the word getting out about people in prison not living up to the wealth of terrible stereotypes that circulate about them.

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Sentencing Hiccup

What formula can we use to convert size of mistake into years of your life? A friend recently passed along a story about a soldier from Fort Hood who shot and killed his friend in a misguided attempt to cure him of the hiccups.

As someone who develops hiccups routinely, my immediate thought was “Thank goodness none of my friends own a gun!” Then I read the article. Turns out this guy got 3.5 years for involuntary manslaughter. And now I’m wondering: How do you convert idiocy into years in prison? Are we afraid that if he doesn’t go to jail that he’ll continue to kill anyone whose diaphragm is acting up? Were years shaved off the sentence because he was already suffering from losing a friend? And of course: How many years would a Black soldier have been given?

I’m sorry to say that I don’t have an answer to any of these questions. And in the time that I’ve been researching this stuff, I haven’t seen anyone else whip out a calculator. (To be fair, I choose my sources pretty selectively, so I might’ve missed this.)

Let’s say that a bunch of decision-makers read my blog and call a meeting to order and set a formula. What variables should they include?

How about this: instead of seeking the right number of years to punish someone, let’s seek the right number of years to prevent this crime in the future. And if the answer is “0,” don’t assume that you’ve miscalculated.

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11×15, or Why I’m Proud to Live in Wisconsin

If the name of the blog didn’t tip you off, I’m not crazy about locking people up. So I was pretty psyched to come across the “11×15” intiative, geared toward cutting Wisconsin’s prison population in half (from about 22,000 to 11,000) by 2015. This initiative, by the way, comes from a coalition of faith-based organizations  (WISDOM) and is deliberately non-partisan. Neat.

I got pretty jazzed when I read that article, so I was tooling around the internet trying to further bask in the activist glow cast by 11×15, and I came across a comment from a critic. He was arguing that he “wasn’t so sure 11,000 is the right number.”

Touche, sir.

WI state prison population by race

Wisconsin state prison population by race

But what’s even crazier is that we could drive policy changes that way. As WISDOM, the group spear heading the 11 x 15 initiative, argues, “The 11X15 goal is reasonable and possible. Even after it is achieved, Wisconsin will still have a higher rate of incarceration than Minnesota. What is needed is for the people of Wisconsin to demand a change!”

They have some concrete ideas about how to get there, especially increasing the use of drug treatment centers and mental health resources. It’s great news that they’ve done their homework and think it’s feasible, because cutting the prison population in half is great – at least it’s a great start.

And 11 x 15 is a nifty slogan, too. “Only the people who are legitimately a danger to society and yet would not be better off in a high quality mental health facility by ’15” doesn’t sound as slick, I’ll admit. But I hope that neither WISDOM and the united faith-based organizations nor Wisconsin’s general population internalizes any number as the “right” number of people to have in prison.

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System overload: plea bargains vs. trial by jury

A recent NYT editorial by Michelle Alexander, civil rights lawyer and author of The New Jim Crowe, posits a striking question: What would happen if everyone who was charged with a crime actually exercised their right to a trial by jury?

If you grew up watching Matlock as much as I did, you might think jury trials are fairly common. Unfortunately, the vast majority of the accused take plea bargains; more than ninety percent of criminal cases never see a jury trial. Thus the amount of resources that would be required for all alleged offenders to receive jury trials far exceeds what is currently available at the state or federal level.

The answer to that question, then, is this: Chaos would ensue. Alexander writes:

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

So why do the accused so often take pleas? Haven’t we all been raised with the ideal that a jury of one’s peers is the highest standard of justice available in a democracy? Don’t we know that the burden of proof is with the prosecution, making it possible that even a guilty person could walk away unscathed from a jury trial?

The truth is, most people can’t afford a lawyer who will be able to spend any significant time or energy on them. They probably know little to nothing about the criminal justice system, and – particularly if they’re Black or undocumented – most of what they do know is more likely to instill fear or distrust than idealism or faith. So when they’re told (usually by their own defense lawyer) that a plea bargain is their best bet, that even if they’re innocent they’ll likely be convicted and given a much harsher sentence if the case goes to trial, many people feel powerless to challenge that.

And for a lot of folks, a plea bargain really is a good thing in some ways. Especially if the person is guilty of the offense, they often receive shorter sentences or probation from a plea bargain, and really can go home sooner. If they’re worried about what’s happening to their kids, for example, or just scared shitless by living in jail, many people will take the plea bargain first and ask questions later.

But once at home, secondary forms of punishment abound. Particularly for people convicted of drug offenses, public benefits like subsidized housing and food stamps are frequently revoked. Conviction records make finding jobs more difficult, and can result in people losing custody of their children. And if the person is convicted of another crime, the sentence could be much harsher as a result of the earlier conviction.

People who demand a trial by jury experience a longer waiting and trial period, and some probably do receive harsher sentences than the plea bargain would have offered. But many do not. And if the number of people who exercised their sixth amendment rights merely doubled, it would be enough to bring the current system to a crashing halt and require our country to seriously consider the way we lock people up.

It’s pretty depressing that simply utilizing our rights would so drastically disrupt today’s justice system. It’s also pretty exciting to think that the people who are often treated as the least powerful players in the criminal justice system have a very powerful resource at their disposal. That’s something to think about.

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Singing a different tune: Federal corrections planning to sell mp3 players in commissaries

Federal prisons across the U.S. are making an interesting shift in 2012: by the end of this year, incarcerated men and women in federal facilities will be allowed to purchase mp3 players and tracks from their prison commissaries.

This decision has been defended as a creative way to “[keep] inmates constructively occupied” in order to cut down on disorder and violence. It is also promoted as a way to keep people in prison connected to the outside world.

I’m all for treating people in prison like people, people who are into stuff like music. And if I were in prison and living next to someone who screamed themselves to sleep every night or had to listen to CO’s verbally abusing my peers all day, I can’t think of anything I’d rather have than a pair of headphones and some Tracy Chapman.

Inmates will be permitted to download songs from a database of about 1,000,000 titles. But – and here’s the rub – the songs available will be pre-screened and essentially consist of only “G” rated tracks. They will also be screened for “disruptive” songs.

So I’m ambivalent. I mean, anything that increases the quality of life for people in prison is good. But don’t you think it sounds ridiculous to say that neither people under the age of 17 nor people in prison can purchase explicit music? In that way, this is just one more opportunity to infantalize incarcerated people.

One last point: realistically speaking, the purchase of mp3 players is not an equal opportunity endeavor. Sure, some people had money when they went to prison, or have family members who have money. Particularly in federal prison, where most white collar criminals are sent, some folks could certainly afford this luxury. But I’m going to go ahead and make the educated guess that most people in prison can’t afford that shit – they certainly won’t pay for them out of their wages from prison labor. For them, this new “freedom” will offer just another way to highlight their economic disadvantage.

Check out the U.S.A. Today article here.

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A debt for society: phone charges extort loved ones

If you pay any attention to prison issues, you’ve probably heard folks complain about the high cost of making a phone call while incarcerated. Here’s a snapshot of the situation:

Rates vary by state, but range from $.048/minute in New York to $3.95 + $.69/minute in Oregon (intrastate). That’s 72 cents for a fifteen minute call in New York versus $14.30 for a fifteen minute call in Oregon. Unfortunately Oregon inmates can’t request New York rates.

The higher rates are the result of kickbacks to state contracting agencies. Some states have no such “commissions,” while others charge up to 60% of revenues – raking in $152 million per year at an average of 42% of overall revenues nationwide.

Oddly enough, a CCA (private) prison in Oklahoma actually closed because of a binding contract with AT&T. The prison, located in Sayre, was home to about 1,000 Wisconsin prisoners who were getting charged such high rates for long distance phone calls that Wisconsin insisted AT&T lower the rates. When AT&T refused, the state of Wisconsin transferred all its prisoners to a different CCA facility with better rates, shutting down the Sayre prison and resulting in the loss of 225 jobs for Sayre residents.

While some people seem to think that this is a “don’t do the crime if you can’t do the time” kind of thing, this is not a price paid by incarcerated people. This is a price paid by their – disproportionately poor, disproportionately female – loved ones.

Positive relationships with family members is the number one indication of success upon re-entry for folks getting out of prison. A huge number of people in prison never receive a visit, especially if they’re sent to a private facility out of state. In light of that information, we should be paying people to make phone calls, not gouging them with rates when they do. When we make it harder for people to keep in touch with family, we increase the odds that we’ll be paying for their incarceration again shortly after their release.

See the Prison Legal News article here.

Life until death: The numbers

1 in 11: The proportion of the U.S. prison population currently serving life sentences.

141,000: The number of people serving life sentences in the U.S.

29: The average number of years served by people sentenced to life in prison. This is up from 21 years in the 1990’s.

1 in 3: The number of people with life sentences who have life without parole.

2,000: The number of people serving life sentences in Mississippi. Also the number of people serving life sentences in Germany. (Mississippi’s total state population is about 2% of Germany’s total population.)

2,500: The number of people serving life without parole sentences for crimes committed when they were under the age of 18.

43,000: The number of people in California serving sentences as a result of “3 strikes and you’re out” legislation.

$19 billion: The amount of money California spends each year incarcerating 3 strikes prisoners, half of whom are incarcerated for non-violent offenses.

Life without parole is often gestured to as a humane alternative to the death penalty. But since life without parole has been increasingly used as a sentence, few potential capital punishment convictions have been “reduced” to life without parole. Instead, people who would never have received a death sentence receive more and longer life sentences. A lot of noise is made about the 3,300 people on death row in the U.S. Perhaps some noise should also be made about the 141,000 who have received the “other death sentence.”

Check out Marie Gottschalk’s excellent article on this topic for the Prison Legal News.

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Nurturant parent politics: reframing to promote transformative justice

I recently gave a brief presentation in transformative justice to four people I didn’t know. Since TJ is so incredibly unlike the traditional criminal justice system and because I didn’t want to leave these four people thinking I was a nutcase, I framed the discussion around two hypothetical situations:

A stranger breaks into your car and steals your car radio –  what would you do?

Your brother, sister, child, or parent breaks into your car and steals your car radio – what would you do?

This seemed like a good way to get people rethinking responses to crime. I figured that people would be more interested in thinking creatively and addressing individual situations if they had an investment in what happened to the offender. I also figured that more people would want to know (and deal with) why the crime was committed in the second scenario. That’s transformative justice, baby.

Ironically, three days later by complete chance I happened upon Don’t Think of an Elephant: Know Your Values and Frame the Debate by George Lakoff. Surprise! There’s an actual foundation of knowledge for what I was doing.

Have you ever heard of the “strict father” and “nurturant parent” models? I sure hadn’t. But I was inadvertently doing exactly what Lakoff argues we (progressives) have to do – among other things – if we’re going to appeal to the masses: Take a strict father viewpoint and reframe it around a nurturant parent viewpoint.

In a nutshell, the strict father model works like this: a strong male figure makes the rules, punishes anyone who disobeys, and doesn’t engage in dialogue or ask permission for jack. Individual success and competition is viewed as the hallmark of national progress. Anyone who threatens that model, tries to help the “bad” children who deserve their lot in life for failing to make a lot of money and achieve traditional success, is actually hurting themselves and everyone else by getting in the way of discipline, order, and morality. Within this framework, things like free drug treatment programs, welfare, affirmative action, etc. are detrimental to the natural development and success of the nation’s “children” (literal and figurative), who will actually learn and thrive through punishment, not support.

In contrast, the nurturant parent framework looks like this: gender neutral parent figures support their “children” by empathizing, understanding their needs, and providing resources to meet those needs. They believe children need safety and support to thrive, as well as freedom to learn on their own and actualize their own potential. Basic tenets are empathy and responsibility.

I think that analysis is pretty boss, frankly, because all of a sudden I get why abortion and gay marriage matter so much to conservatives. I get why our foreign policy seems to center around doing whatever the hell we want, and even when our interests are in agreement with an agreement, not signing anything anyway. Y’all should probably read that book.

It really, really is not rocket science to figure out what this has to do with the prison system. What I accidentally hit on for my little presentation was that our current system runs within the strict father model; transformative justice aligns with the nurturant parent model: What went wrong? What can we do to prevent this in the future? What is my (or my community’s/state’s/country’s) responsibility to aid in that prevention?

The truth is, everyone can understand both structures. Most people utilize both structures at different times, but even if you only use one you certainly encounter both in books and movies and your neighbors’ lives and your children’s schools and on and on. Which is dope for two reasons: because conservative viewpoints now seem more like differences of opinion to me than outright craziness, and because now I know that everyone can understand transformative justice when it’s presented in the right framework.

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Jails increasingly act as mental health care facilities

Cook County Sheriff Tom Dart says that the Illinois mental health system “is so screwed up that I’ve become the largest mental health care provider in the state of Illinois.”

Dart’s statement comes at a time when the state is planning to shut down six of its twelve mental health centers by the end of April. Though the reduction is expected to save the state 2 million dollars, critics believe the costs to everything from prisons to emergency rooms will far exceed the short term savings. Not to mention the costs to those suffering from mental illness – costs that will manifest themselves both economically and otherwise.

Of the 11,000 or so prisoners at the Cook County Jail, Mr. Dart estimates that 2,000 people suffer from mental health problems. Many of these 2,000 are jailed for minor crimes but commit new infractions due to stress and confusion and see their short sentences run on and on. Corrections officers spend far more time with their mentally ill charges than with the general population, and receive only limited training.

Corrections officers and administrators don’t want people with mental illness to be in jail. People with mental illness don’t want to be in jail. People in jail don’t want people with mental illness in jail. So why are they in jail?

“Because [the police department] is the only place left to call,” suggests Amy Watson, associate professor at the Jane Addams College of Social Work at the University of Illinois, Chicago.

Fancy that: a situation in which instead of addressing a problem, we choose to hide it behind bars.

Resources for people struggling with mental illness were already scarce. Cutting them in half means that waiting lists will be longer, access will be more limited, and existing services will be over-extended.

And when the mentally ill are incarcerated? Problems abound for prisoners and officers alike. Incarcerated people who are mentally ill are more likely to refuse to follow orders or even act out violently against CO’s. In response, CO’s are more likely to throw mentally ill people in solitary confinement, which frequently exacerbates the problems they are already experiencing. In fact, mentally ill people in solitary confinement make up the majority of prison suicides. This is especially sad when one considers that these suicidal people are often in jail in the first place because of simple drug possession or vagrancy.

And if they are released, they typically leave with up to two weeks of their medication. In addition to the challenge of finding a health provider who can renew their prescription, many of them are uninsured, and will have to wait at least 45 days for Medicaid approval. And that’s just one aspect of the enormous challenge that mentally ill people face upon re-entry. Thus it is no surprise that mentally ill folks are among the most likely to recidivate.

Check out the NYT article here.

Or hear from people with mental illnesses during a similar reduction in services that Texas went through a year ago in this video from the Texas Tribune.

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