Tag Archives: prison abolition

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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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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Chicken soup for the prison abolitionist’s soul

Transformative justice sees crime as an opportunity to build a more caring, more inclusive, more just community. Safety doesn’t lie in bigger fences, harsher prisons, more police, or locking ourselves in till we ourselves are prisoners. Safety and security – real security – come from building a community where because we have cared for and included all, that community will be there for us, when trouble comes to us. For trouble comes to us all, but trouble itself is an opportunity.

- Ruth Morris, Stories of Transformative Justice, p 21

Ruth Morris was a Canadian activist, scholar, and Quaker. She was at the forefront of the early prison abolition movement, and a founding member of the International Conference on Prison Abolition (ICOPA) which is one of the most prominent abolitionist groups working today.

All of that would be reason enough for me to read what she wrote, but the reason that I really get all hot and bothered for Ruth Morris is that she worked in non-profits her whole life, regularly spending time with the people she was advocating for. We live in a world where that’s easy to avoid, and she didn’t. Boss.

So rewind for a second to me a year ago at my teeny tiny coffee shop table, reading Morris’ Stories of Transformative Justice. Pretty soon I was embarrassing the heck out of myself, because I was crying in public. Not eyes watering, dabbing at the corners crying, but tears-and-snot-everywhere crying. It was pretty gross, but it was totally justified because the stories were so moving. I’ll synopsize an example:

One of the stories that Morris tells is about a family with a six-year-old boy. This boy is charming, loving, adored by his parents and his teacher. Then, one day he leaves a little late from school. He is crossing the cross-walk by himself, and a car comes racing around the corner. Either the driver doesn’t see him there, or he can’t stop in time. He hits and kills the six-year-old, leaving his parents childless.

Obviously the parents are crushed. And angry. Angry at God, and fate, and the idiot 16-year-old kid who thoughtlessly drove well over the speed limit past an elementary school.

As Morris tells it, that night the father is absolutely beside himself with grief and anger, and doesn’t know what to do. And then something clicks. One life is over: his little boy will never come back. But now another life stands to be lost as well.

The man goes to his wife and tells her what he wants to do. There isn’t anything they can do for their son now, but maybe there is something they can do for the sixteen-year-old who killed him. And his wife agrees.

The couple petitions the court to drop the charges against the young man. He is grateful, and incredibly remorseful. But they don’t stop there. They also give him a part-time job at the man’s business, and eventually help pay his way through college. He becomes a regular fixture at holidays, a member of their family.

This is a story Morris read in a Canadian newspaper, though to my ears it sounds almost biblical. It is an incredible thing to imagine offering emotional and economic support to the person who killed your son, but it is also clear that what everyone gained from that situation far outstrips what anyone would’ve have gotten from a prison sentence.

Transformative justice takes a lot of forms, but whenever I think about it now my first thought is about two parents who are willing to not only forgive but to love the person who killed their only child, and who gain so much from that willingness.

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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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Where to start

If you’re new to the concept of prison abolition, there are way too many places to start.

You could start historically: the first American penitentiary, ye olde Walnut Street Jail, began as a method of reform courtesy of Pennsylvania Quakers. Incarceration as punishment was considered enlightened compared to corporal punishment, fines, public humiliation, and the death penalty.

… or with problems: America incarcerates more people per capita than any other developed nation in the world, in many states they get more funding than public universities, they’re riddled with violence, and roughly two-thirds of the people who get out of prison end up back behind bars within three years. Ouch.

… or with solutions: folks are trying to address problems with the prison system by creating things like drug courts, family courts, sentencing circles, etc. etc. Some solutions work better than others, but it’s mad good that people are even thinking about the issue.

… or with current events: with the upcoming presidential election, for example, voting rights for people convicted of crimes are a hot topic. So happy to hear that Mr. Romney doesn’t think anyone convicted of a violent crime should ever be able to cast a vote. There’s an outside possibility that Mitt knows that the folks convicted of violent crimes are mostly poor, a.k.a. disproportionately liberal. Just sayin’.

The list goes on. Personally, I always tell people to read Angela Davis’ Are Prisons Obsolete? It is a small book, but mighty. Davis is really freaking smart, and she’s covered the issue so concisely and thoroughly that I honestly have a hard time thinking about prison abolition in any framework other than hers. Hit up Amazon.com or perhaps a library (don’t you just love libraries?) for the book, or holla at me and I’ll send you one of the many copies I’ve mysteriously accumulated over the years.

Or just read my next post for a not-at-all-good-enough but much-shorter-and-more-instantly-gratifying “best of” Are Prisons Obsolete?, and then I’m assuming you’ll get so excited you won’t be able to control yourself and will immediately drive/bike/jog to your local library; don’t forget to put on shoes.

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