Tag Archives: collaborative justice

Reducing Court Congestion Is Easy

[1]The examples below are based on actual incidents from around Toronto, but names and other information about  individuals have been changed to preserve their identity.

Sheena, Farzaneh and a third classmate were walking in the crowded halls of their junior high,  joking around with one another.  Sheena and Farzaneh grabbed Kim’s scarf and threw it to one another.  After Sheena threw it, she did not see what happened to the scarf, the bell rang, and the girls went into their classroom.  Kim could not find her scarf.  Upset, she reported it to a teacher.  The police were called, and Sheena and Farzaneh were both charged with theft.

Sahir and James were Grade 9 high school friends.  One day, for no clear reason, they removed one of the school’s fire extinguishers and sprayed it all over an empty portable classroom.  The police were called and Sahir and James were both charged with possession of stolen property (the fire extinguisher) and with mischief.

Mira told the police that Katrina, a landed immigrant, a wife, and a mother of two children, aged 7 and 5, hit and broke her camera at a cultural event attended by hundreds of people.  The damages were estimated at $500.00.   Without conducting any further investigation, the police went to Katrina’s home, and violently arrested her in front of her two young children.   Katrina was charged with mischief.  After a year-and-a-half in the criminal justice system, tremendous hardship, and lasting psychological harm to Katrina’s children who became fearful of the police, the Crown Attorney withdrew her charges.

In a different time, in a different place, all of these interactions might have been dealt with reasonably, rationally, and by the community.

In the lost scarf scenario, the teachers, the principal or even Kim’s parents, might have sat down with Sheena and Farzaneh, found out if the incident was truly an accident or a case of excessive teasing.  They might have talked to Sheena and Farzaneh’s parents, and enlisted everyone’s help in finding or replacing the scarf.  They might have engaged in the kind of conversation that would have helped Sheena and Farzaneh see the impact of their actions, especially if they were bullying Kim.  Kim would have felt heard and empowered, and Sheena and Farzaneh would have helped in the healing.

Sahir and James may have received a stern talk from the principal and their parents.  Maybe they would have been grounded.  Maybe they would have been suspended for a couple of days.  They would have helped with the clean-up of the classroom and perhaps paid for any damages.  They would have, in real terms, been responsible for their actions.  And they would have continued their studies, without the stigma of a criminal charge.

In Katrina and Mira’s case, the police could have investigated the case further, instead of attacking and arresting Katrina in her home, in front of her children.  They could have easily found out that another person claimed responsibility for bumping into the camera; and that it was an accident.  They could have simply called in Katrina, who would have gone into the police station and told them her version of the events.  There was no need to treat her so violently.

In all of the above scenarios, the community and the police had several options available to them to deal with each case comprehensively, responsibly, and in a way that would have satisfied everyone, without causing further harm.  Instead, everyone abdicated their own responsibility and immediately opted to use a sledgehammer to kill an ant.

Everyone reached for their guns.

Sheena and Farzaneh, two young girls who had never been in trouble with the law before, were now viewed as “criminals.”  They had to take time off school to appear in court several times.  They were dragged through the criminal justice system.  Police time, court time and legal aid, all limited resources, were wasted on the kind of thing that many view as normal, if undesirable teenage behaviour.

Sahir and James, neither of whom had a criminal record, also got their first taste of an expensive and at times disorganized criminal justice system.  Rather than feel responsible for their actions, they felt the heavy hand of the law and the unfairness of a disproportionate response to their actions- actions which, again, at different times, would have been dismissed as “boys will be boys,” as letting off steam.  Actions which did not harm any one individual.  While we don’t have to excuse or dismiss negative behaviour by young men, there are surely other means of dealing with Sahir and James’s actions than criminalizing them and having their case occupy the criminal justice system for well over a year.

And yet, while every one of us, citizens and politicians, complain about the amount of time and money it takes to get issues resolved in courts, no one is willing to take the simplest, most rational, most sensible step:

To really reduce congestion in the courts, we’ve got to have less cases enter the system, in the first place.

Some cases just don’t belong in the criminal justice system.

There are more effective, more humane, and cheaper ways to deal with some problems.

But instead, we blame not having enough resources.  Instead, we blame defence lawyers for standing up for their clients’ rights and ensuring that our legal system does not become abusive.  Instead, we make laws that widen the net that traps people into the justice system.  Instead, we make mandatory minimum sentences, which will result in more people opting for a trial, as opposed to pleading guilty, therefore clogging the system more.  Instead, we take away money from those programs (such as restorative justice ones) designed to resolve conflicts in more meaningful ways that cost less, have greater positive impact, and are less punitive.

Think about it: if you want to reduce hospital and health costs and wait time resulting from smoking, would you hand out more cigarettes, make them easier for young people to obtain, build more hospitals, or would you invest in preventing smoking, in the first place?

If you want to reduce congestion on the roads, would you take away the bicycle lanes, make a rule that everyone has to drive to work, reduce public transit services, or would you make it easier for people to get to their destination without having to drive?

The most effective way to reduce any kind of traffic is to deal with the problem at the point of entry.  Everyone of us, and in particular actors in the criminal justice system, need to take responsibility for this.

Parents and educators must demand that schools and the police make greater efforts to teach, preach and practice conflict resolution skills.  Let’s not waste resources by calling the police for every lost or broken item.  Let’s abandon our zero-tolerance policy toward any aberrant act.  Let’s focus on meaningful options for conflict resolution.

Our police should also be trained to avoid laying charges, where the actions are minor and where other, more effective forms of conflict resolution exist and can be helpful.  Any criminal lawyer can make a long list of cases where clients were charged with petty offences for actions that were hardly dangerous and that can be dealt with better in other ways.  Any criminal lawyer can tell you of cases he or she had where, had the police conducted a fuller investigation, they may not have charged the client.  Any criminal lawyer can make a list of cases where there was barely any reliable evidence against their client.

Once the police charge these people, the cases enter the criminal justice system and stay there–rotting, delaying justice, labeling, stigmatizing, and frustrating accused and victims alike.

Crown Attorneys generally do not have the time and sometimes lack the courage, at an early stage, to just pull out cases that don’t belong in the courts.  Their policies and directions need to change, as well.  That is a crucial step in reducing court congestion.

As a community, we need to be ready to deal with conflicts through mediation and other restorative justice means.  As educators, we need to teach young people to understand the impact of their actions and be accountable.  We need to help victims feel heard and empowered.  We need to help accused persons feel connected and capable of making other choices.

We need to make everyone responsible for the solution, rather just hold the criminal justice system responsible for everyone’s failures.

We need to train our officers to solve conflicts more peacefully and collaboratively, to speak, engage, build trust and help find solutions.  And we need to give Crown Attorneys the time, the direction, and the freedom to examine files early on, to determine if the case before them belongs in the criminal justice system, in the first place, and to determine if it should be resolved through alternative means.

It turns out that the best and easiest way to reduce court congestion is also the most sensible, the most ethical, and the most responsible option.  We need the political will to implement it.  And the political will will come only when voters demand it.


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Filed under Collaboration, collaborative justice, Court congestion, Court delay, criminal justice, Restorative justice

Jails: Do Not Expect Healing

Every once in a while, the media focuses on the dreadful state of our prisons, and the number of people suffering from serious mental health problems who are stuck in these institutions.

(For two recent articles on the topic, see  Kirk Makin’s reports in the Globe and Mail from January 2011, below:  http://www.theglobeandmail.com/news/national/why-canadas-prisons-cant-cope-with-flood-of-mentally-ill-inmates/article1879501/
http://www.theglobeandmail.com/news/national/prisons-grapple-with-increase-in-mentally-ill-female-inmates/article1884243/  )

Each time, these exposés reveal the same tragedies:  There are far too many people who suffer from mental health problems in jail.  Jails are not the appropriate place for the treatment of the mentally ill.  Jails and jail conditions often exacerbate people’s already compromised mental health.  Each time, it appears that we have a mental health “crisis” in our justice system.

But the mental health “crisis” is not news.  It’s been an ongoing problem and shame for our society.

Some readers may be surprised at what these reports reveal.  But the fact that those institutionalized for having committed society’s most condemned acts are, themselves, suffering, should not be a surprise.

A person who turns to crime, especially violent crime, or one who returns to crime repeatedly, cannot be whole.

Crime is rarely an option chosen by rational people who have decent options in life.  When a child is asked, “What do you want to be when you grow up,” the excited response is not, “I want to be a criminal.  I want to be drunk in public and do crazy things. I want to steal and beat up people, and shoot in a drive-by.” Crime is not the dream of a child.

And yet a chain of events usually leads some people to acts of crime.

In the majority of these cases, those people are not whole.  The chain of events chipped away at their mental health, at their stability, at their innocent and hopeful view of life.  The chain of events stripped away many of their options.

Of course, such circumstances generally do not abdicate an offender of responsibility.  But given our role in perpetuating these conditions, we must change our approach to crime.

After all, who else is responsible for the damage?  Who else is responsible for the untreated depression?  Who is responsible for the suffering and harm that result from a broken mental health system that often offers people drugs but no other support?  Who is responsible for the neglect and abuse a child receives?  Who is responsible for ignoring that neglect and abuse, for not lending a hand to the family that so badly needed it?  Who is responsible to parents who work at full-time minimum wage jobs, but who then don’t make enough to buy food and pay the rent, let alone save for college, pay for tutoring, or get qualified and sufficient counseling when needed?  Who is responsible for the lack of love, care, and attention in a child’s life, because his or her parent(s) were drunk, manic, or absent?  Who is responsible for throwing the mentally ill in jail (and then acting disappointed and angry, when that person commits another crime?)

We are.  The community is responsible.

We saw it coming and we turned away.

We saw the need for help and we ignored it.

We found it easier to say, “Well, the parents are responsible.”  “A tough childhood doesn’t justify turning to violence later.”

Yet we know that certain factors certainly lead to deteriorated mental health.  And we know that people with serious mental health problems are disproportionately represented in our jails.  We know that certain factors are more likely to lead to a life of trouble with the law.  We know all this, and yet we ease our conscience by abdicating our responsibility.  We know that A leads to B, and we do nothing to intervene.  We provide no support.  And then we cry in shock, shake our heads, and condemn people when A did lead to B.  We throw people in prison, when we know that prisons are ineffective as a place to rehabilitate people.  We relegate the mentally ill to jails, but provide them with no services to address their ailments.

And then we do it all over again, knowing what is to come.

If we want to fix it, we have to prevent it.

If we want justice, we have to seek it together, right from the start.

We have to collaborate to make us all: victims, offenders, and the community, whole.

Imagine what would have happened that first time a young man was charged with theft or robbery if we did things differently.  What if, instead of dealing with him in court, where we largely ignored him or his victims and where just handed him a quick sentence (whether apparently lenient or apparently harsh), we involved him, his victims, and his community?

What if he really listened to and heard about the impact of his actions?  What if the victims and others in the community listened to what got him there?  What if they caught the beginnings of a mental illness?  What if the community observed that the young man had little support at home: his single mother was working around the clock at jobs which provided little security.  He has very few of those extras that might make our children’s lives rich: the security of not worrying about where his food will come from, knowing that his father will be home to speak to him about his day, loving and available grandparents, engaging activities, and most importantly, the knowledge that he is moving forward, that there is hope for progress in his life, that he can make an improvement in his life and his family’s life.

What if everyone was involved in righting this wrong, and making each other and themselves whole?

The young man would likely take responsibility for his actions, and attempt to make it up to his victims.  He would practice empathy. He could see his own ability to make a positive impact on others and himself.  His self-esteem would gain a boost.

In the process, he becomes a whole person to his victims, who feel less anxious and afraid, having gotten to know the person who harmed them.  They feel more healed by participating in the process, where the offender accepted accountability and tried to help them.  And what’s more, as so often happens in true collaborative justice, the victims and the community step in to support the young man so that he can choose a different path in the future.  If the beginnings of a mental illness are discovered, the community may pitch in with support: financial or services, to help him and his family manage the illness.

Put aside our needs to condemn and to blame.  Replace it with empathy and with accountability by all, and amazingly, we are likely to see a lot less crime.

The presence of so many people with mental health problems in the criminal justice system shows us how wasteful and immoral is our individualistic, punishment-oriented approach.

We cannot expect our government to take care of our people if we, ourselves, do not want to be bothered, want to go our merry way, want to turn a blind eye.  It’s time that we, as communities, stepped in and held ourselves accountable.

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