Our system of justice is adversarial. Lawyers argue the rightness of their case within a corpus of law as interpreted by a judge or jury. The laws change. Those served by the law change. Free legal service is now available in some form or other to the poor and to juveniles. Before long, children may be represented in custody disputes.
Yet something is wrong, drastically wrong, in the courts of our country. Justice in teeming urban centers all too often is characterized by haste, ill-prepared and harassed defense attorneys, interminable waiting, frightened victims, most of whom can ill afford time lost from work, and defendants who see the entire system as having little real relevance to their lives. Their cynical view is that more money can buy a better brand of justice, which means, to them, “a better shake.” Sentences mean little; fines often go unpaid; a term on probation usually means, given present high probation case loads, neither sufficient oversight nor adequate help.
The crime that sets the cumbersome machine of criminal justice in motion is seen by the typical urban defendant in terms of its components-lawyers, judges, occasionally the law itself-components that operate in the setting of crowded, noisy courtrooms. At best, a defendant’s view of the crime seems a technical one, a crime that could be wiped out “if only I had money to pay for a better lawyer.”
Where is there consideration for the human dimension of the crime? How much consideration is paid to victims and their hurts? Why is a broader sense of true justice not imparted? Where is the sense that people are involved and that a community fabric, however frail, has been further torn by a criminal act? Where is the sense that both victim and victimizer are members of the human family, of a community? For the most part, these aspects are absent, woefully absent, so that justice, if perceived at all, is seen as a thing apart from the lives of those whom it touches.
Although the law and the techniques of its administration have improved in many significant respects, from my vantage point it seems that the law and its attendant machinery have drifted further and further from the essentials, from touching in human terms the lives of defendant and complainant alike.
The processes of criminal justice should be viewed not as a distant, objective entity but as an extension of people, of a community, of society.
Some of the “new” forms of justice that this book describes (the roots of which, curiously, go back several millennia) are beginning to give depth and breadth to our Anglo-Saxon common-law traditions of justice. Mediation, arbitration, citizen disposition panels, restitution, victim-assistance, and alternative-sentencing modes appear as hopeful signs, in differing forms but all resting on the same basic assumptions. Victims meet victimizers in the presence of neutral moderators or mediators, themselves community residents, volunteers who attempt to reach beneath the surface “right-wrong” aspects of the conflict in an effort to discover a mutual acknowledgment of the problem and to craft a solution that is meaningful in human terms to each of the disputing parties. To ensure that justice does not become tribal, decisions reached by such proceedings are thereafter reviewed and approved by lawyers and judges.
I have seen remarkable results from mediated disputes and from citizen levied sentences in criminal areas. Young offenders have been sentenced to guard frightened welfare recipients when they cash their checks; offenders have been sentenced to coach basketball, to work in hospitals, and to tutor in day-care centers. Work crews made up of offenders, while receiving CET A wages, have cleaned up parks and assisted in school maintenance. A portion of CET A wages is returned weekly by the offender to his victim. I have seen such programs work wonders with offenders who were labeled chronic or incorrigible and for whom the most expensive services of treatment had previously been provided-and had failed. Responsibility is fixed on the defendant, and the defendant is enlisted to redress his or her criminal act in specific, human terms.
What is really different about this? First, the defendant is made responsible in both legal and human terms. Next, the defendant is treated as part of his community, which he has a right (even an obligation) to be involved in. Last, the defendant, having wrested something from a victim and, by extension, from the community, is treated as a person of worth who has something of worth to return to that community or victim, or both. It is both a process of citizen involvement and an outcome, through sentence or mediated settlement, cast in specific and human terms.
Thousands of citizens in the last decade have become active participants in areas heretofore walled off by professionals. Community schools, community health centers, and citizen mental-health boards are pertinent examples. The field of justice seems the final bastion.
Community modes of justice do not rest on a foundation of innocent guilty, right-wrong, win-lose, victor-vanquished. The foundation here is one of healing, of reconciliation, of defendant with complainant as well as with the community. That this book addresses this new movement and sets
out examples of various programs to be found today in all parts of our country, as well as abroad, is extremely encouraging to all those who seek to improve the administration of criminal justice.
Commissioner John A. Calhoun
Administration for Children, Youth and Families
Department of Health and Human Services
*Originally published as the Foreword for the book Beyond the Courtroom: Programs in Community Justice and Conflict Resolution by Benedict S. Alper and Lawrence T. Nichols in 1981.