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Crimcast is a virtual resource devoted to critical conversations about criminology and criminal justice issues. Our blogposts, twitter feeds, podcasts and other content provide an overview of trends, research, commentary and events of interest to criminal justice practitioners, academics and the general public. CrimCast is sponsored by The Center for Crime and Popular Culture, St. Francis College, Brooklyn, NY.

Filtering by Tag: restorative justice

The Marshall Project has launched

Nickie Phillips

In an interview with Huffington Post, Neil Barsky, the founder and chairman of The Marshall Project, stated

“Nobody in their right mind, if they had to start a criminal justice system from scratch, would come up with what we have in America. Nobody.”

In an effort to address injustices in the criminal justice system and spark reform, The Marshall Project will feature news and articles on criminal justice events including "articles written by prisoners, and interviews with corrections officers, police officers and others involved in the criminal justice system."

From the mission statement:

We believe that storytelling can be a powerful agent of social change. Our mission is to raise public awareness around issues of criminal justice and the possibility for reform. But while we are nonpartisan, we are not neutral. Our hope is that by bringing transparency to the systemic problems that plague our courts and prisons, we can help stimulate a national conversation about how best to reform our system of crime and punishment.

Follow The Marshall Project on Twitter.

When Punishment Was a New and Remarkable Thing: Medieval Anglo-Saxon Responses to Crime

Staci Strobl

Crimcast caught up with Dr. Jay Paul Gates (John Jay College of Criminal Justice) to discuss his and co-editor Dr. Nicole Marafioti's (Trinity University) edited volume Capital and Corporal Punishment in Anglo-Saxon England (2014, Boydell & Brewer). In the Middle Ages, Anglo-Saxon authorities often punished lawbreakers with harsh corporal penalties, such as execution, mutilation, and imprisonment. Despite their severity, however, these penalties were not arbitrary exercises of power. Rather, they were informed by nuanced philosophies of punishment which sought to resolve conflict, keep the peace, and enforce Christian morality. The ten essays in this volume engage legal, literary, historical, and archaeological evidence to investigate the role of punishment in Anglo-Saxon society. 

What prompted your interest in Anglo-Saxon punishment and how did this volume come about? 

Our interest in the topic of capital and corporal punishment grew out of basic questions concerning how the Anglo-Saxons – who inhabited and ruled England from the fifth century through the eleventh – thought about bodies in a legal context and how the body came to carry and convey meaning. We both love Wulfstan, that quirky eleventh-century Archbishop of York. His assertion that mutilation was a merciful alternative to execution—that the law must be concerned with the soul rather than the body—kept nagging us for attention. From here, we found contributors whose interests coalesced around Anglo-Saxon England. Yet the essays in the volume go well beyond the limits of England and the Anglo-Saxon period. Early Germanic and ‘barbarian’ law provide foundations; Mosaic, Irish, and Frisian law offer sources and analogues; and post- Conquest views of Anglo-Saxon England and Anglo-Saxon history show that the Anglo-Saxons continued to have relevance and meaning well beyond 1066.

One of the most interesting ideas to come out of the volume is that the Anglo-Saxons, at least initially, didn’t have much of a concept of punishment. There were systems of law, compensation, and vengeance, but these were all concerned with the maintenance of social order and stability rather than with the desire to punish unacceptable behavior. And when we came to think about it, the very concept of punishment itself seemed odd. After all, what does it do? For example, if Nicole lops off my arm, I am far better off if she pays me compensation for it than if she is punished. I might even forego compensation to get the satisfaction of vengeance. But punishment would leave me seeming weak and certainly unsatisfied: knowing she is in prison or doing back-breaking labor on a chain-gang is not going to satisfy me the way retaliation would. I’d also be short both an arm and a cash payment.

So, how did notions of punishment develop in Anglo-Saxon societies? 

Punishment seems to have developed under the influence of two major forces, the systematization of ecclesiastical penance and the centralization of royal authority. Christian responses to wrongdoing were surprisingly consistent with secular ideas of compensation. The penance known as “sick-maintenance,” for instance, required a perpetrator to do his victim’s work for him until he recovered—regardless of whether the injury was intentional or accidental. This was certainly good for social stability (the injury is compensated, the attacker shows he’s sorry, and no one needs to take vengeance), but there was also a real incentive to perform penance because it was good for the soul. The centralization of royal power also aimed to discourage vengeance and socially destabilizing actions. In fact, the earliest Anglo-Saxon punishments were designed to give people a chance to cool off and accept compensation in place of vengeance. Punishment becomes a new and remarkable thing, and kings only gradually assumed the right and responsibility of fixing other people’s injuries. It was only toward the end of the Anglo-Saxon period that kings claimed the authority to act on the body of a subject—a development that would have an important impact on post-Conquest English law.

 

 
Jay Paul Gates, John Jay College of Criminal Justice   

Jay Paul Gates, John Jay College of Criminal Justice

 

What ideas about punishment described in the volume appear to be persisting into modern Anglo-Saxon-influenced societies?  

The first point to note is that Anglo-American law, at least through the twentieth century, was very much influenced by the laws penned by Archbishop Wulfstan in the late tenth and early eleventh centuries. They were first taken up by the Danish conqueror king, Cnut, and then by the Normans after the 1066 Conquest. In those early laws we see a real tension between the need for the threat of punishment as a means of deterrence and penitential punishment as a means of rehabilitating the criminal, except in the most extreme cases. Such attitudes toward the role of punishment in the criminal justice system seem still to be hotly debated. Similarly, the restrictions on felons in modern American law, even after they have served their sentences, recalls the Anglo-Saxon notion of the guilty as being permanently marked, whether through the elimination of their legal status (oath-worthiness) or through mutilation. However, what seems to have slipped into the background in the modern discussion, and which is very much worth foregrounding again, is the medieval concern not just with punishing the perpetrator but making whole the victim.

What can this volume, grounded in the humanities, teach social scientists and criminologists about approaching studies of contemporary punishment? 

As we hear the modern debate, there are three main functions of punishment: deterrence, vengeance, and rehabilitation. To the medieval mind, I don’t know that there was quite so great a distance between these functions as there is for us, and it is perhaps worth returning to the mutually supporting roles of these functions in modern discussions. An example of this may come in the form of compensation laws and “sick-maintenance.” These two related legal categories are fundamentally concerned with how to make whole a victim. That is, after one person wounded another, he had to pay compensation for the injury to the victim (the compensation tariffs of Anglo-Saxon law remain the foundation for workers’ compensation tables) and then do the work that the injured person was unable to do until he had healed sufficiently. Certainly there is a sense of vengeance enacted on the man who must do the work of the person he injured—it must be a slight to one’s honor and sense of self to serve someone whom he had wanted badly enough to attack. Yet there is a process for the injured party to see his attacker work for his benefit and make good the injury. Through such a process there is a real possibility of the cooling of tempers, of reconciliation between the two parties, and of rehabilitating the public peace that was broken as well. Something like this has been tried in the restorative justice after the genocidal violence in Rwanda. But perhaps looking to the medieval understandings of punishment would bring punishment and restorative justice into more regular discourse within less extraordinary criminal justice processes.

What avenues of future research will this volume open?

At least one suggestion has been that the idea of crime might need to be re-thought. After all, if penance is concerned with sin and if vengeance and compensation are concerned with injury, what defines crime? What makes crime its own category of wrong and how might it be punished? 

Additionally, there is a focus on men in this volume, simply because so many of our sources represent injury as a predominantly masculine concern. However, it is also important to consider women’s roles in punishment. How involved were women in imposing or mitigating punishment? How were they punished for offenses they committed, and what exactly were those offenses? Although evidence for female misconduct is more elusive, there is valuable work to be done in this area. 

Contributors to the volume include Valerie Allen, Jo Buckberry, Daniela Fruscione, Jay Paul Gates, Stefan Jurasinski, Nicole Marafioti, Daniel O'Gorman, Lisi Oliver, Andrew Rabin, and Daniel Thomas.

Youth Courts: Not the Best Alternative for Juvenile Offenders

Nickie Phillips

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Danielle Reynolds, contributorProblems with due process, confidentiality, net-widening, and a lack of empirical demonstrations of effectiveness, make youth courts over-rated

Juvenile crimes account for a large portion of today’s criminal activity. In 2010, 1.6 million juvenile arrests were reported nationwide. Due to the high volume of cases and the limited ability to respond effectively to low-level offenses by first-time offenders, the youth court concept was constructed and implemented as an alternative method to handle juvenile delinquency through fair and restorative sentences. By March 2010, 1,050 youth courts were recorded nationwide, serving an estimated 110,000 to 125,000 youthful offenders annually.

Developed to promote the concepts of peer shaming, restorative justice and law-related education, youth courts are operated almost entirely by youths between ages 13 and 18, assuming the role of contributing actors in the courtroom process, under strict adult supervision. Youth courts hold juveniles accountable for their actions while helping them to understand the harm that his or her actions may have caused and to make restorations to society. Youth volunteers learn the facts of the case and determine an appropriate sanction based on the nature of the offense, the offender’s understanding of its effects as well his or her needs or talents. Sanctions are developed to repair the relationship between the respondent and his or her community as well as treating the underlying condition which may have led to the delinquent act.

Although the goals and concepts behind the youth court ideal appear promising, in practice, youth courts are not an effective alternative to the traditional juvenile adjudication process and therefore should be abandoned as its design leads to violations of individual and constitutional rights.

Due Process

In Kent v. United States (1966), and upheld in In re Gault (1967), Supreme Court held that a juvenile must be afforded due process rights, including right to counsel and self-incrimination. Youth courts violate juveniles’ due process rights by the coercive nature in which they garner participation. Youth courts lack state sanction and are unable to determine guilt or innocence, therefore although youth court participation appears voluntary, offenders must waive their right to self-incrimination and admit guilt prior to participation into the court.

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Although the justice system is based on the premise of innocent until proven guilty, “voluntary” participation deviates from this as it places both the guilty and innocent under the same pressure to plead guilty based on numerous unknowns including what incriminating evidence may have been uncovered and compiled by the prosecution, how strong the prosecution’s case may be and the possibilities of severe penalties if found guilty. Even if innocent, youth face enormous pressure by court room participants, eager to trim their caseloads, to participate in youth court by threatening them with formal prosecution and possible incarceration.

Further, the effectiveness of counsel in juvenile proceedings is essential and case law provides that a juvenile with counsel is not sufficient on its face, but that counsel must be effective, trained and professionally qualified to provide the legal advice necessary during court proceedings. Although youth offenders are provided an attorney, youth counselors are not legally qualified to provide adequate legal counsel necessary to proceed in a fair and just manner.

Net-widening

The prosecution has unlimited discretion to refuse to prosecute many of the types of offenses referred to youth court. Since the development and expansion of youth courts, approximately nine percent of juvenile arrests are diverted from formal juvenile adjudication process annually. Therefore, youth courts bring a wider range of offenders under social control by hearing minor offenses, which have traditionally been settled without invoking a court response.

Confidentiality concerns

Confidentiality is necessary to preserve youth accountability, therefore delinquency proceedings must be concealed from the public in order to prevent youth from experimenting stigmatization. Many youth courts waive confidentiality rights of the offender which fails to prohibit youth volunteers from discussing personal and family matters aired in youth court proceedings, contributing to embarrassment, stigmatization and alienation of youth offenders. Although some youth courts obligate each youth volunteer to sign an oath of confidentiality of all matters discussed during court proceedings, it cannot be guaranteed that youth, who have been deemed more immature than adults by the Supreme Court, will not discuss such sensitive and confidential matters outside of the courtroom. Public disclosure of youth court information may hinder the youth’s ability to obtain meaningful employment or attend the college long after the youth has been rehabilitated.

Equal protection under the law

Youth courts violate equal protection of juveniles through eligibility requirements to enter the program. Judges and prosecutors involved in the referral process are given a broad discretion on which juveniles may be offered the option to participate in youth court versus the traditional juvenile adjudication process. Freedom of discretion may lead to more serious issues as it is vulnerable to social, racial or ethnic discrimination.

Peers run the show at Colonie Youth Court (NY) [Photo credit: www.youthcourt,.net]

Inconsistency of jury sentencing

Peer jury sentencing is ineffective and violates the restorative goals of sentencing as dispositions are of questionable constitutionality and merely acts of childish retribution with no restorative effect. The lack of

procedural regularity that comes with case-by-case discretion produces gross partiality and the legitimacy of the program.

Lack of research demonstrating empirical effectiveness

Few comprehensive evaluations of youth court programs currently exist to provide evidence of the plethora of benefits and successes that youth courts advocate. Although studies have demonstrated that compared to traditional adjudication, youth courts decrease recidivism while increasing the percentage of sentence completion, it must be noted that low recidivism may be attributed as much to the type of youth entering the program than to its actual effectiveness. The net widening effect produced by youth courts allows youth to enter the program who would traditionally be excused from participation in the criminal justice system.

Studies reporting success must be scrutinized as methodological limitations have led to inaccurate portrayals of success. Youth court successes are largely anecdotal and derived from favorable media coverage and the positive impression of parents, teachers, court staff and youth involved in the program.

Policymakers, the legislature and the public must determine if youth courts are worth the millions of dollars spent annually on its operations. Although arguments of its effectiveness have ensured its continued budget, there still remains a limited array of research to support this claim. Therefore, the lack of proven effectiveness of the program, along with its net widening effects and violations of individual rights as stated in the Constitution, indicates that the implementation of youth courts as an alternative sanctioning program for juveniles is not cost-effective and must be aborted.

danielle

Danielle Reynolds, Crimcast contributor, teaches Criminal Justice at John Jay College of Criminal Justice. Danielle earned her Master’s degree in Criminal Justice in 2011 from John Jay College where she was awarded the Claude Hawley Medal and Graduate Scholarship. She currently lives in New York City.

Redeeming the Dream: Reflections on the March on Washington

Nickie Phillips

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It was a day to commemorate a watershed event in civil rights history and the thousands at the Lincoln Memorial in Washington yesterday soaked it all in-- from inspirational speeches to demonstrations and sign-waiving from groups such as the NAACP to lone protestors standing up for a $15 federal minimum wage or an end to Stand Your Ground laws.

march handout

Though Crimcast hoped to live-tweet impressions from the speeches, we were not able to get in ear-shot of them (so we caught up later with news clips).  We were also thwarted by elaborate anti-terrorism fencing that dispersed people widely.  We arrived after the event had started and the crowd flow was confusing, so we ended up side-lined behind the Lincoln Memorial and later at the WWII Memorial--both areas were filled with supporters and demonstrators (who made the most of the day with signs and mini-marches and music and spoken word).

The majority of our tweets were crowd impressions and photos of signs and slogans.  Below see some of our favorite shots of calls for jobs, justice and freedom.  The big takeaway from the day: the civil rights movement is needed now just as ever before.  In light of Trayvon Martin and the recent SCOTUS decision on voter registration, to name just a couple such events, people must continue to speak up for an America that provides the promises of democracy and equal justice for all.  Redeem the dream!

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Crimcast to Live-Tweet from March on Washington, Saturday August 24

Nickie Phillips

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Crimcast, along with thousands of Americans, will descend on Washington tomorrow morning (Sat. Aug. 24, 8 a.m. EST) to stand up for justice, jobs and freedom in commemoration of the historic march 50 years ago.  Follow us on Twitter as we tweet our impressions of the pre-march rally, including speeches by Al Sharpton, Martin Luther King III, John Lewis, Nancy Pelosi and many others.  We will also tweet our impressions of the crowd and share our favorite signs and slogans.  Crimcast, of course, is partial to calls for justice! 

Restorative Justice and Forgiveness

Nickie Phillips

Paul Tullis’ article, “Can Forgiveness Play a Role in Criminal Justice?,” is an engaging read about the power of restorative justice. For more on restorative justice, see our post that recommends two documentaries and our podcast on restorative justice featuring Prof. Mary Louise Frampton of the Thelton E. Henderson Center for Social Justice at University of California, Berkeley, School of Law.

Restorative Justice

Nickie Phillips

Prof. Mary Louise Frampton of the Thelton E. Henderson Center for Social Justice at University of California, Berkeley, School of Law discusses an experimental restorative justice program in a West Oakland, California, middle school. Based on her and her colleagues' evaluation, the program was successful in reducing student suspensions and expulsions for bad behavior and transforming the school culture from punishment-based to problem-solving.  As a result, The Oakland Unified School District has adopted restorative justice policies in many of its schools.

References

Restorative Justice for Oakland Youth

http://www.rjoyoakland.org/

Sumner, M. D., C.J. Silverman & M.L. Frampton (2010). School-based restorative justice as an alternative to zero-tolerance policies: Lessons from West Oakland. Berkeley, CA: Thelton E. Henderson Center for Social Justice, University of California, Berkeley, School of Law. http://www.law.berkeley.edu/files/11-2010_School-based_Restorative_Justice_As_an_Alternative_to_Zero-Tolerance_Policies.pdf