Tag Archives: abolition vs. reform

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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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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The sunny side

About a year ago now, I was feeling cranky. I was up to my armpits in my thesis project, writing about transformative alternatives to incarceration for young women. Or at least, I was supposed to be writing about transformative alternatives, but it turns out that in order to talk seriously about transforming something you really need to explain the necessity for transformation first. So actually I was writing a thesis on all the ways that young women (specifically poor, young women of color) get royally screwed by the criminal justice system, the detention system, and society as a whole. I know it sounds like a party, but it was actually getting to be a downer.

One night I tossed about six books and a ginormous notebook and my laptop into a bag and hauled it out to a coffee shop. I precariously balanced my laptop, notebook, and (obviously) black coffee and 7,986 calorie “snack” on a table built for one half of a person, and chose a book at random from my stack.

Ruh roh. This book looked real cheesy. I had gotten it through interlibrary loan (yay, libraries!) because it was one of about two books ever to have the words “transformative justice” in the title, but come on! I was writing a serious thesis here!

OK, so I think you know where I’m going with this. I opened the book exclusively to confirm my suspicions and eliminate something from my devastatingly long list of shit-I-have-to-read, and I was hooked. Truth be told, it was kind of cheesy, but in the best possible way.

Because I have a lot to say about this book, the ideas it discusses, and the oh-so-incredible author, Ruth Morris, I’m going to save the stories themselves for a later date. For now, I’m going to leave you with a brief description of transformative justice, straight from the horse’s mouth.

Transformative justice uses the power unleashed by the harm of a crime to let those most affected find truly creative, healing solutions. Transformative justice includes victims, offenders, their families, and their communities, and invites them to use the past to dream and create a better future.

As someone who is a little bit preoccupied with action steps, my immediate thought was, “That’ll never work.” And that’s why I spend all my time whining about what’s wrong with the current system. Because we can’t forget that the current system doesn’t work. There’s no real evidence that it reduces crime significantly or increases public safety. And in the meantime, it’s hurting a whole lot of people in a whole lot of ways. Thus, dismissing transformative justice outright just because it doesn’t sound feasible is not an acceptable reaction given our current context. So if you are, stop that right now!

But I’m sounding like Negative Nancy again, so I’m gonna shut up. Come back for story time tomorrow.

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Four ideas from Angela Davis

Why should we get rid of prisons? Nobody said it better than Angela Y. Davis in her amazing little book Are Prisons Obsolete? (Seven Stories Press, 2005). In a mere 115 pages Davis can take you from completely uninformed to possessing a pretty sophisticated degree of understanding. She is so cool.

But if you don’t feel like reading 115 pages today, or if you’re confined to your home due to mobility issues, or if your library doesn’t have a copy, or if for any other reason you are not currently able to read her absolutely brilliant text, I’ve compiled a little “greatest hits” list: four of my favorite quotes from the book, in order of appearance.

1. Prison abolitionists are dismissed as utopians and idealists whose ideas are at best unrealistic and impracticable, and, at worst, mystifying and foolish. This is a measure of how difficult it is to envision a social order that does not rely on the threat of sequestering people in dreadful places designed to separate them from their communities and families. The prison is considered so “natural” that it is extremely hard to imagine life without it. (pages 9-10)

Why this is excellent: We can’t do anything about prisons until we are willing to at least momentarily suspend the assumption that we absolutely need to have them. There’s a lot of other crap that goes along with prison abolition, but none of it matters unless we’re willing to say “OK, so what if we could get rid of prisons?” Thank you, that’s a start.

2. The prison … functions ideologically as an abstract site into which undesirables are deposited, relieving us of the responsibility of thinking about the real issues afflicting those communities from which prisoners are drawn in such disproportionate numbers … It relieves us of the responsibility of seriously engaging with the problems of our society, especially those produced by racism and, increasingly, global capitalism. (page 16)

Why this is important: Like any good twelve step program, we can’t get anywhere until we admit we have a problem. The prison system is a problem, but that is conveniently overlooked most of the time. Instead, we like to pretend it’s a solution. Thus not only does the system trick us into ignoring how much of a problem prisons are, it also helps us forget about how much we should be doing about other issues, like poverty and racism. Got a social problem? Call it a legal problem, lock some folks up, and you don’t have to think about it anymore. Remember how the Jim Crow laws of the postbellum South eased the social and economic transition away from slavery for white folks who wanted to hold onto white supremacy and an incredibly affordable labor pool? How about that time that the “War on Poverty” was replaced with the “War on Drugs”? 

3. Positing decarceration as our overarching strategy, we [should] try to envision a continuum of alternatives to imprisonment–demilitarization of schools, revitalization of education at all levels, a health system that provides free physical and mental care to all, and a justice system based on reparation and reconciliation rather than retribution and vengeance. (page 107)

Why I’m into this: We can’t think about how to deal with the prison system unless we recognize that what we’re dealing with is way bigger than that. This is not a prison problem, this is an everything problem. Pick a social issue, any social issue. Prisons are probably partially responsible for it, in some way a product of it, and are probably helping to keep that problem around. Heterosexism, sexism, racism, classism, American exceptionalism: I could go on all day. In the same way that you can’t go about addressing sexism without addressing racism, there is (fortunately or unfortunately, I’m not sure) no way to fix prisons without fixing a bunch of other shit, too.

4. The alternatives toward which I have gestured … which can also include job and living wage programs, alternatives to the disestablished welfare program, community-based recreation, and many more … are associated both directly and indirectly with the existing system of criminal justice. But, however mediated their relation might be to the current system of jails and prisons, these alternatives are attempting to reverse the impact of the prison industrial complex on our world. (page 111)

Why this one, too: OK, so this may sound a little bit like number three, and God knows there’s enough of value in that book so that I probably could have picked a more diverse selection, but there’s something special about this one. The crucial point here is that everything that we do, from a reduction in sentencing to the establishment of a great transitional housing facility to family sentencing circles for youth, must be focused on “[reversing] the impact of the prison industrial complex on our world.” It’s not good enough to do something better than what already exists because reforms function – intentionally or not – to entrench the prison system in our world. It sounds a little like I’m saying let people rot in horrible conditions, because the worse prisons are now the more likely it is that we’ll get rid of them in the future. That’s not completely true, but it’s not completely false either. Food for thought, and more on this (and all the other points in this post) soon.

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