Listen to Judge Alex Calabrese and Amanda Berman's episode of the Crime and Consequence podcast: 'Why the 'why' matters'. Alex Calabrese is the Presiding Judge of the Red Hook Community Justice Center in Brooklyn, New York and Amanda Berman is Project Director. Red Hook is a one-judge court covering 230,000 people and is the most comprehensive community court in the United States, designed to produce more meaningful and holistic case resolutions. In the episode, an actor reads their essay from our recently published book Crime and Consequence: what should happen to people who commit criminal offences?
This episode and fourteen others are available to listen here, or you can subscribe to Crime and Consequence wherever you get your podcasts.
Alex Calabrese and Amanda Berman's essay from Crime and Consequence:
As the movement of justice reform in the United States has gained traction in recent years at both local and national level, debates have swirled around everything from bail practices to charging decisions, risk assessment, sentencing reform, mass incarceration and more. But at its heart, much of the debate can be boiled down to one question: What should happen to people who commit criminal offences? For centuries, the traditional court system’s response has been fairly uniform – determine what happened (by plea or trial), consider the individual’s criminal history (if any), and calculate a corresponding sentence (of course, in some circumstances, the individual may be acquitted entirely). The more serious the charge and more substantial the person’s criminal history, the heftier the sentence.
The flaw with such an approach is that it overlooks the most critical question of all: Why did this person commit this offence? Problemsolving courts were developed to address precisely this question, because if we do not address the underlying issues that led someone to commit an offence, how can we expect to change their behavior? The traditional approach to justice has produced high rates of recidivism, lack of confidence in justice, bloated federal, state and local budgets and a trail of unsatisfied victims. The problem-solving approach, in contrast, seeks to identify those underlying issues – such as substance abuse, mental health issues, trauma, unemployment, and so forth – and, where appropriate, use the power of the court to empower the defendant to address those issues.
Once the root causes of the behavior have been identified, the system is then positioned to craft a response to address those issues, while balancing the need for accountability and public safety. To be sure, this is no easy task; but there are principles and practices that have proven to be effective in reducing recidivism while simultaneously promoting confidence in that justice system. These are the same principles that form the foundation of problem-solving courts in our system, and they should inform both the process and the outcome of a case.
Who is the accused as a person?
Our courts have historically been built to process cases, rather than to help people. They often reduce people to a charge, allowing the mistakes they have made to define them and viewing defendants through an overly simplistic lens that strips them of their humanity, thereby making it easier to mete out punishment and turn a blind eye to the system’s failures. Problem-solving courts, in contrast, take a holistic view of the person, acknowledging them for who they are in totality – a father, a daughter, a caretaker, a friend, a mentor, and so on – rather than what they have done. We must start from the premise that anyone who commits an offence is more than that one act, more than a simple charge or docket number or a moment in time. They are a whole person, with a past, present and future; a past that has likely been marked by trauma and victimization, including many circumstances beyond their control; a present that exists outside of this case, where they are part of a community, with obligations to loved ones or employers, and where they may face enormous instability, pain and stress well beyond this case; and a future for which they have hopes and dreams, aspirations and fears. It is within this complex package that every individual arrives at the doorstep of the justice system and must therefore be viewed and treated as such.
It is also critical to acknowledge the defendant’s place in community – whether it be their family unit, neighborhood, or other social network, they are a part of a community and that community may have been disrupted by the harm that was caused, as well as by the removal of this individual through the arrest and subsequent court process. We must endeavor to put ourselves in the shoes of that community or of their loved ones to ask, “What would I want for my brother/sister/aunt/son/father/etc. if it were them who committed this offence?” Surely anyone who is asked that question will agree that their loved one must be viewed within the broadest possible scope of who they are, as an individual and as part of a community.
How should the accused be treated?
When we start from the basic premise that every defendant is a whole person and is a part of the community, it allows justice system actors to feel invested in their success, thereby treating the accused with the same dignity and respect that they would want for their own loved ones. That is the essence of procedural justice, also known as procedural fairness, which refers to the perceived fairness and interpersonal treatment someone experiences as they move through the justice system. Rather than focusing on the outcome of the case, procedural justice focuses on how someone experiences the process. Decades worth of research indicate that when elements of procedural justice are present, individuals are more likely to comply with court mandates, trust the system, and obey the laws in general. In fact, research has shown that defendants’ willingness to accept court decisions are tied more to their perceptions of the process than the outcomes themselves. This is true regardless of race, gender or socioeconomic status.
So how do we make a better process? Procedural justice research offers some guidance by highlighting the five most critical elements that appear to carry the most weight with defendants:
- Whether the individual felt they had a voice and opportunity to be heard;
- Whether the individual felt they were treated with dignity and respect;
- Whether the individual felt they understood what was going on throughout the proceedings;
- Whether the individual felt that the decisionmaker(s) in their case were fair and neutral; and
- Whether the individual perceived the court actors as attempting to be helpful.
Unfortunately the system as it stands now is rife with procedural injustice at every stage: from the moment a court user walks through the door to enter the security screening process, to the confusing legal jargon used in the courtroom, and the frustrations of being bounced around to different courtrooms, judges and attorneys. These injustices have been documented widely and served as the basis of Malcom Feeley’s 1979 groundbreaking book, The Process is the Punishment. So needless to say, this is not a new phenomenon. Procedural justice provides a promising and refreshing antidote to some of the ills documented in Feeley’s book and experienced by many court goers every day around the world. It can be as simple as posting courtroom rules in a respectful and helpful tone; taking an extra moment to explain the proceedings, and the reasoning behind a decision, in plain language; encouraging court users to ask questions and having resources on hand to offer in response; and generally being courteous and respectful. Procedural justice teaches us that if we incorporate these elements into the daily workings of the court system, we can produce better compliance and enhance the legitimacy of the system. As most of these elements relate to the interpersonal treatment of individuals, they can be accomplished with little or no funding, in any courthouse setting – whether a problem-solving court or not.
What type of person do we want the accused to be upon returning to their community?
Given that every individual is part of a community, they will also be returning to their community – which begs the question, Who do we want the defendant to be upon returning to their community? Naturally we want them to be productive, safe and connected members of society, who view the system as legitimate and obey the laws and social norms of their community. Therefore, it is only logical that we must provide an intervention that seeks to produce such a result. This requires an investment in the individual whereby they leave the system in a better position than they were going into it. What that looks like will depend on the individual and their needs, but examples might include mental health or trauma counseling, substance abuse treatment, job training, or other services that set the individual up for success and empower them to lead productive and law-abiding lives.
Of course, there may be situations where the system responds with incarceration – but this should be reserved for the most serious of cases and must be the exception, not the rule. As Greg Berman and Julian Adler observed in their recent work (Start Here: A Road Map to Reducing Mass Incarceration, 2018), jail is “an accelerant of human misery”, proven to produce even more hardened criminals and providing minimal to no value outside of temporary – and typically very short-term – incapacitation. Those who are sentenced to a term of incarceration, whether short-term or long-term, are released with the same problems they walked in with, only exacerbated by their time in jail. With no tools given to them for success, how can we reasonably expect them to make better decisions upon release?
To get the outcomes we, as a society and as a justice system want, we must make the services and resources readily available to those who need them. Ideally this would include social work professionals onsite who can make assessments in real time, along with appropriate recommendations for services that defendants can be immediately linked to from the moment of release. This might include practical needs, such as linkages to public assistance or housing, or more longterm services such as mental health counseling or substance abuse treatment. Defendants must be made to feel that they are valued and respected by the court system and viewed as a member of the community. As such, any intervention should also seek to maintain and enhance the defendant’s social supports by helping them to connect with those who can be a positive force in their lives moving forward.
Avoiding collateral consequences
Equally as important as providing these tools for success is preventing or minimizing potential barriers to that success. Too often, the justice system fails to consider the myriad consequences that flow from convictions and/or incarceratory sentences. Often referred to as “collateral consequences”, the reality is that these consequences are hardly collateral at all. Indeed, they can be just as harmful – if not more so – as the conviction or sentence itself. Justice involvement can impact employment; professional licensing; housing; immigration status; student loan eligibility; and more. In addition, defendants face a heavier burden than ever as information about their criminal history has become widely accessible through the internet, and assurances of confidentiality and sealing are not nearly as reliable as they once were.
It is imperative, therefore, that court actors educate themselves and take into consideration the potential consequences of a conviction or sentence before moving forward with any disposition. In New York, for example, an arrest alone can trigger job suspension and even a plea to a non-criminal offence can trigger consequences beyond the criminal case. If we want to pave the way for a defendant to successfully reintegrate into their community and avoid recycling through the system, we are undermining our own objectives by allowing collateral consequences to build unnecessary roadblocks along the way.
What harm has been caused and how can the accused repair that harm?
The word ‘accountability’ is used frequently in the criminal justice system, often by prosecutors and judges in the context of justifying a stiffer disposition or punishment. For many, it is another way of saying: ‘You do the crime, you do the time.’ However, accountability can and should mean something different, something that is couched more in terms of quality than quantity of a response. In other words, accountability should inform the type of response, rather than simply the length of a sentence. It means an individual taking responsibility in a meaningful way for the harm they have caused and participating actively in the healing process to repair that harm. It means acknowledging the past but looking towards the future, for the sake of their own healing as well as for those who have been harmed.
This is an essential element of restorative justice, an approach to justice that has been practiced for centuries, particularly in indigenous cultures around the world. This approach is more victim-centered and focuses on healing more than punishment – healing for those who have been harmed, as well as those who have caused the harm. It empowers victims by giving them a voice and directly holding the person who caused them harm accountable in a way that a prison
sentence could not.
At the Red Hook Community Justice Center, our Peacemaking program is modeled on the Native American Navajo nation’s approach to justice, which brings together the harmed party and the offender, along with members of the community, who facilitate a circle process that seeks to repair harm and heal the relationship moving forward. In Red Hook, we train volunteers from the community to serve as peacemakers, who participate in the circles to represent the voice of the community. They include residents, business owners, teachers, artists, youth, faith-based leaders, and even local police. With the consent of the victim, defendants participate in the circles, accepting responsibility for the harm they have caused, while also looking towards the future to determine, alongside other circle participants, how to avoid causing such harm again. In between circle sessions, the defendant is expected to work on himself individually, addressing the issues that contributed to the conflict or harm he caused in that case. This is the true meaning of accountability, and it must be contemplated when courts consider how to respond to harm that has been caused in their community.
Proportionality and due process
As discussed above, arming the defendant with the tools for success is paramount; but that need must be balanced against the considerations of proportionality and due process. It may be tempting to address an individual’s every need and then require those services to be monitored by the court; but such a slippery slope may lead to net widening, leaving people tangled in the justice system longer than desired, causing even further harm. Therefore, where the charges in the case are relatively minor, courts should mandate only a short-term intervention but support the defendant in addressing the issue on a voluntary basis. For example, community courts – a type of neighborhood-based problemsolving court – offer voluntary services to everyone on a walk-in basis, including those who have completed their mandates or never had a case at all. Using evidence-based approaches such as a risk-need responsivity model helps to match individual defendants with the most appropriate services, in addition to working with the attorneys to ensure that responses are legally proportionate.
At the Red Hook Community Justice Center, our social work staff uses procedural justice and evidence-based strategies such as motivational interviewing and principles of risk-need-responsivity to engage participants and support them in completing their mandate. Many of these participants choose to engage in voluntary services as well. They understand that our staff will continue to work with them and support them in whatever capacity they are needed, but by offering these services on a voluntary basis, we are able to avoid the danger of net-widening.
A related issue that must be addressed is the need to safeguard due process at every stage of the proceedings. This means that defendants must not be forced into services, nor should they have to choose between accessing services and exercising their constitutional rights. In Red Hook, every defendant has the opportunity to litigate their case through motions, hearing and trial, and still engage in services if they so choose. In fact, the majority of defendants who engage in services are doing so in a pre-plea posture, an anomaly in the traditional court system. By safeguarding these due process rights, defendants are more likely to take advantage of the services they need while trusting the court and respecting its legitimacy.
The criminal justice system represents the ultimate power of government over the individual. With the enormity of that power, every actor in the justice system – from the judge to the prosecutor, to the defense attorney and beyond – has an obligation to use that power responsibly, with care and with compassion. Every defendant should be treated the same way you would want your mother, father, sister, or brother to be treated – as a person, not a docket number; within the limits of proportionality and due process; and in a manner that puts them back on the road to success so they can rejoin their community in a positive and productive capacity. This will yield a more effective and holistic resolution of the case for the defendant, the community, the victim, the police, the court system and taxpayers. In addition to producing better results, this approach builds confidence in the justice system and treats individuals with the dignity and respect that they deserve.
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The RR3 special interest group on Covid-19 will today convene voluntary sector leaders to discuss what is needed to mitigate the impacts of the virus on CJS voluntary organisations and the service users they support. We'll publish the key points from the discussion in a blog.