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.