Taking Down the Walls

An excellent article circulated in Cyberspace recently. It was entitled “Taking Down the Walls: Measures to Integrate the Objectives of the Justice System with the Community’s. Originally, the Inter Net link was --http://www.ojp.usdoj.gov/nij/rest-just/ch6/takingdown.htm--, but this site is apparently no longer extant. A casual look at the link suggests that this was at one time included on the United States Department of Justice’s website. It's no longer there.

What are we to make of this? Perhaps, the walls are going back up. The website now yields:

“Not Found

“The requested object does not exist on this server. The link you followed is either outdated, inaccurate, or the server has been instructed not to let you have it.”

Apparently, the current administration’s US Department of Justice considers this material to be “either outdated, inaccurate, or the server has been instructed not to let you [the average citizen] have it.” Why would that be, you think?

Consider, for example, the possible justification for this judgment. In other words, consider the essay itself. Note in particular the statement, “It is useful to examine how the modern day Justice system’s process keeps the public away, which perpetuates a fear and anxiety-based cycle.” Curiously, the decision by the DOJ to remove the webpage is just one more way of keeping the public away, and thereby potentially create a situation of “fear and anxiety”. This is the sort of actions which tend to justify the bumper sticker which reads, “I love my country, but I fear my government.”

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Taking Down the Walls:

Measures to Integrate the Objectives

of the Justice System with the Community’s

(by Mark Carey, Director, Dakota County Community Corrections,

originally published in Community Corrections Report, 1997 [1])

<http://www.civicresearchinstitute.com/co1.html>

“The criminal and juvenile justice system has been closely scrutinized in recent times by academic pundits, elected officials, and the public. Generally, the evaluation has not been favorable, whether based on factual data or perception. The justice system has been ineffective at stemming the conditions that breed crime. Sentencing serves a useful purpose, but large-scale crime reduction is not one of them. The public is dissatisfied with the system’s ability to create the kind of societal change, which would reduce their fear of crime. In addition, people tend to globalize their fears and anxieties, often applying sweeping judgments about an entire set of players, in this case toward both offenders and justice system personnel. The justice system will face a ‘we-they’ response from the public until it addresses the human condition of fear due to the lack of familiarity with the justice process and the system’s inability to resolve inter-personal conflict.”

Carey goes on to illustrate some of the ways the Justice system tends to isolate the public from the halls which are attempting (with varying degrees of success) to dispense Justice. He then describes the consequences of both failed and successful local systems.

Carey notes, for example, the walls the separate the Justice System from the public, even when such walls stem from self-protection, from an elite cadre of law-enforcement and other officials who only marginally interact with the general public (due again to fears of being ‘too open’), to a jargon-riddled law code which is often indecipherable. Carey notes six features currently prevalent in the US justice system which create an insulation effect:

1. Data Privacy and Convenient Access to Information -- information on repeat offenders which might allow self-protection of victims, including sharing information with schools, where other students and teachers might be impacted,

2. Sterilization of Information -- public agencies having access to private, public and summary data which may or may not be shared with the public -- and when it is, often ‘massaged’ to such a degree that its value is virtually eliminated,

3. Removal of Emotion from Justice Process -- expressions of raw emotion often results in removal of the ‘offender’, despite the interpersonal nature of the conflict -- and thus the speedy trial process takes precedence over restoration,

4. Intimidating and Foreign Structures -- from imposing structural designs of courts and justice centers to judges sitting higher and wearing robes (and demanding that everyone rise at their entrances and exits) to the maintenance of order at all costs,

5. Professionalization -- the demand for extensive knowledge of the law before one is encouraged to speak (or even tolerated), and where not being a “member of the ‘system club’” reduces any possibility to adhering to unwritten rules and protocols, and

6. Public Service Convenience -- where it is easier to call the ‘authorities’ instead of attempting to resolve the issues between the affected parties; in effect, a specialization implying a reliance on ‘experts’, ultimately an disempowering effect.

The result is that the Justice System becomes the fortress of specialized language, rules, and social cliques, all wrapped in a structural edifice, all of which “shuns public scrutiny and influence” (if only because “public input tends to mess up an otherwise fairly tidy set of procedures for those who work closely within the system”).

Nils Christie [2] has described “interpersonal conflict as personal property” and justice system members as “professional thieves”, who steal conflict from those who own it, and thus contribute to a system which disempowers both victims and communities.

The consequences of crime and the fear and anxiety it causes, is, according to Carey, a self-protective isolation, which in turn leads to a breakdown of social bonding. This lack of growing interpersonal relationships breeds unfamiliarity, a loss of trust and thus further isolation. The end result creates an atmosphere where crime can grow, and thereby completes the spiraling cycle. Furthermore, offenders are isolated, unknown, and thus not held accountable by the community (only the system). By being anonymous, offenders are freed from any informal societal constraints and thus emboldened to commit crimes.

Because the criminal justice system often shares in the blame for crimes (or for the failure to alleviate, reduce, or effect appropriate retribution), the natural inclination is for the justice system personnel to themselves become isolated. Such isolation leads to limiting easy access to information and/or controlling the nature of the information that is released (both of which might result in actions against the same justice system personnel). The public responds by not listening, trusting, or understanding anything behind the “wall”.

Carey poses four questions to illustrate the problem:

“1. Is the justice process easy for a citizen to understand upon observation, or is it so filled with legal and expert jargon to make it largely incomprehensible?

“2. Does the public have real access to the system (i.e. comfortable, respectful, inviting), or are there roadblocks to participation?

“3. Do community members have an opportunity to truly influence the outcome, or is it almost entirely determined by the system personnel?

“4. Is the system respectful of cultural, gender, socio-economical differences by the way it operates, or is it inflexible?”

There four questions rather precisely define the problem. Four negatives imply a justice system totally out of control and no longer worthy of the name (i.e. no Justice). Four positive responses, on the other hand, would imply justice with a capital “J”. In many cases, the answers can -- in certain cases -- be positive when applied to the Restorative Justice movement which is gaining adherents throughout the nation. The difficulty is that current laws tend to limit the applicability of Restorative Justice to only a few cases. This can only be rectified by members of the justice system relinquishing ever more control to the people who support -- financially and otherwise -- the current system.

Carey notes, for example, that “Restorative Justice is a philosophical framework which puts the repair of crime as the predominant goal of intervention. Crime is violated as a violation of one person by another as opposed to a violation against the state. [Which it obviously is, inasmuch as the state is a ‘fictitious entity’.] The focus is on problem solving for the future rather than solely establishing blame for past behavior.” The end result is that victims are given opportunities for both input and closure, while victims offenders reap the ‘rewards’ of learning of the human impact of their actions. Crime victims are thus supported, crime is condemned, offenders are allowed to make amends (“earn their redemption”), and a more harmonious community is established and maintained.

The curious part of Restorative Justice -- with its emphasis on interpersonal conflict (as opposed to so-called violations against the State) -- is that Victimless Crimes no longer make sense, and thus Common Law becomes the standard of behavior. Government can still play a critical role, however, by serving as a catalyst and facilitator, providing funds, technical assistance, and information. With additional decentralization, neighborhoods and communities can take on ever greater responsibility for managing crime conditions.

Crime is truly an interpersonal conflict, but also involves the community when generalized feelings of fear and anxiety arise and behavior is altered in seeking security systems and so forth. The current Justice System, however, has traditionally focused solely on the offender’s direct action, instead of also the victim and the community itself. Communities also have the capabilities, with restorative-minded practices to remove the isolation crime breeds, to directly involve the public, and to seek harmony at a community level. Carey has noted that, “The common features in the promotion of a community-based, restorative approach are that they 1) fully inform those affected by the crime, 2) provide full access to decision making (in a way that is comfortable, convenient, and respectful), 3) use processes that are raw and real, 4) are consensual in nature whenever possible, 5) unite instead of break apart, 6) use the justice system as a backstop, not the backbone, and 7) are empowering in nature.”

Finally, Carey notes several promising practices, including:

Circle Sentencing -- offenders, their supporters, victims, their supporters, members of the general community, and criminal/juvenile justice system representatives -- facilitated by community “keepers” -- focus on peacemaking and/or healing via consensus building (and in the case of failure, the system can always return to the traditional court system);

Crime Boards -- allows offenders to make reparations to the victim and community (with offenders sentenced to the program by a Judge following adjudication of guilt);

Family Group Conferencing -- meeting(s) between offenders and victims, held both before or after the adjudication process, or as an alternative to the formal justice system;

Community Policing -- Officers first developing trust in local neighborhoods, and then doing problem solving rather than waiting to respond to a call after a crime;

Neighborhood Probation -- essentially probation officers being locally assigned;

School Based Probation -- placing juvenile probation officers in schools;

Community Courts -- courts in remote locations, allowing for greater participation in the court process, and includes resolving disputes directly, treating parties as persons instead of abstract legal entities, and using community resources in resolving disputes;

Community Prosecution -- prosecutors assigned to specific neighborhoods, who can assist communities to understand legal constraints that prevent law enforcement until after the crime is committed; and

Community Defense -- attempts to solve problems that foster crime and injustice before the crime occurs. Attorneys can represent communities (instead of individuals) and is proactive in attempting to prevent crime.

The key element in all these new concepts and alternatives to the current criminal justice system is that they are less centralized, more grass roots, and ultimately more just, fair, and effective. But they are also new, and thus unfamiliar. Resistance to their obvious advantages is often based on nothing more than that change is often uncomfortable. Sometimes such resistance also stems from control-minded authorities -- and which may be the reason for the removal of Carey’s paper from the DOJ website. But in all cases, such resistance is something that must be overcome, evaded, or simply dispensed with.

Justice is a matter of fairness and honesty, is properly Restorative Justice, and indirectly advocates Common Law, eliminates Victimless Crimes, and is thus... well, a good thing.

Restorative Justice Justice, Order, and Law

Forward to:

Constitution of Halexandria Halexandria Constitutional Considerations

______________________

References:

[1] The full essay is currently unavailable on the Internet, but hard copies may be available from Community Corrections Report, telephone 609-683-4450.

[2] Christie, Nils, “Conflicts as Property”, The British Journal of Criminology, Vol. 17, No. 1, January, 1977.

Taking Down the Walls

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