Instead of prisons: a handbook for abolitionists
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- Bu səhifədəki naviqasiya:
- Release on recognizance
- Pretrial diversion
- Abolishing bail
- Interim strategies
- Community dispute mediation centers
- Mediation arbitration
- The moot model
- Kinds of conflict/crimes
- Abolitionist criteria
| Costs to the taxpayer
Data compiled from the 1970 National Jail Census shows a national total of over $330 million spent for operating costs, and over $178 million projected for planned construction of local jails, half or more of whose populations are pretrial detainees. [54] More illuminating is the following rough cost estimate for a large state, New York. [55] Excluding its megalopolis, New York City, this is a fairly typical state, with a number of medium-sized cities and extensive rural areas dotted with small towns. Including its megalopolis, its various jurisdictions exhibit demographic and social characteristics of all the basic types to be found in the United States. Excluding the five counties of New York City, 1974 state figures reveal that on an average day, there were 4,359 inmates in local and county jails, of whom 2,880, or about 66 percent, were pretrial detainees. The cost of county jail incarceration in Monroe County (a representative urbanized upstate county which includes the city of Rochester) was $27 per day ($9,855 per year) per inmate. Taking this cost as average, and multiplying the average daily number of pretrial detainees, we find a cost to New York taxpayers of about $28 million in one year for pretrial detention alone. [56] Costs for New York City are substantially higher. There in 1974 average daily population awaiting disposition was 4,906. Cost of incarceration was in excess of $60 per day ($21,900 per year) per inmate. For 1974, therefore, estimated total cost of pretrial detention in New York City was over $107.5 million, and for the entire state including the city, over $136 million. This was the tab picked up by the taxpayers of New York State in one year, as the cost of holding for ransom several hundred thousand poor people, all of whom were presumed innocent and most of whom would have been released if they had been able to raise bail. [57] Release on recognizance In recent years, many communities have developed ROR programs, as an alternative to bail for selected defendants. In some programs, the defendant also benefits from help in finding employment or medical treatment or in meeting other needs. But these programs tend to be a palliative and not a root solution to the problems they address. In the first place, there is no evidence that ROR programs contribute significantly to the reduction of jail populations. Jails, like nature, abhor a vacuum and if cages are available, there are always plenty of poor people to fill them. In the second place, the selection criteria for ROR (for example, first offense, ties to family and community, steady employment) tend to restrict its availability to those whose crimes are petty enough and whose resources are strong enough that they might have obtained pretrial release without ROR. Even so, ROR can be an improvement. As an interim strategy, abolitionists in advocating ROR should press for judicial rules requiring its expanded use. Pretrial diversion Pretrial diversion programs resemble ROR in that they secure pretrial release without bail. They differ, however, in that they involve forms of social control that take them out of the class of alternatives to pretrial incarceration and place them in a class of alternative forms of prosecution. There is an implicit waiver of the presumption of innocence. The option of submitting to a program of supervision in the community is in return for a court's adjournment of his/her case in contemplation of dismissal. If s/he complies with the rules of supervision, the case will likely be dismissed; but if s/he does not, the adjournment may be revoked and the defendant remanded for conventional prosecution. Such programs thus impose a series of social controls on non convicted defendants that normally attach only to the convicted. They involve the defendant in counseling and in programs designed to provide employment, health care and other services, but they also require him/her to submit to forms of supervision and regulation similar to those of probation and parole-regulation not imposed on defendants who make bail or ROR. Care should be taken therefore, in establishing or supporting these programs, to ensure that the accused fully understands the options and that excessive social controls are eliminated. [58] Abolishing bail In practice bail has more often been used as an instrument of preventive detention than as a constitutionally guaranteed avenue of pretrial release. The setting of criteria for preventive detention is a chancy business at best and will require a process of testing what affords maximum protection to society with minimum violence to the constitutional presumption of innocence. As long as bail is used to accomplish preventive detention in a disguised, arbitrary manner, there will be no pressure to establish fair and reasonable rules, and "dangerousness" will continue to be determined by the subjective viewpoints of individual judges. There is too much room in the bail system for, and no defense against, the administration of justice by personal prejudices from which no one, including the judge, is free. The abolition of bail would expose this hidden agenda and force the development of open and fair rules and judicial accountability. Another hidden form of exploitation that would be eliminated by the abolition of bail is the bail bond business. Bondspersons collect a substantial fee for putting up collateral for those who cannot make bail with their own resources. The amount of the fee is regulated by law, but bondspersons are free to use wide discretion in their assumption of what is for them purely a business risk. The risk itself is frequently covered by collateral. The bondspersons' record of securing appearance for trial is no better than that of ROR programs, bail funds and other pretrial release programs. They perform no other service for their fee than the posting of collateral which would not be necessary if bail did not exist. The fee, tho substantial (usually ten percent of the bail), is in no part returnable to the defendant for appearance, and amounts to a tax on his/her inability to make bail. Abuses are rampant in the bail bond business, but even where bondspersons are honest, the business itself is inherently exploitative. This profitable industry feeds on the victims of the greater social injustice represented by the bail system. Interim strategies We recommend a series of interim strategies and programs. These actions are not ends in themselves, but vehicles to gradually move us toward our goal of abolition of bail. • Organize court watching projects to create a constituency and gather data for abolition arguments and court reform. Reform should aim at relieving crowded dockets, ensuring speedy trials and limiting judicial discretion to hold defendants before trial. Court watchers should examine the incestuous relationships often found between judges, prosecutors, lawyers and bail bondspersons and measure their effects on pretrial release. Studies should be made on the number of pretrial detainees, the length of time imprisoned before disposition and the cost of such detention. Ethnic, racial and economic background of pretrial detainees should be included in a public education campaign to abolish bail and pretrial detention. • Press for legislation to establish percentage cash bail bonds (as in Illinois) and bail remission rules (as in Pennsylvania) to make bail accessible to more people and to make forfeiture less onerous. • Organize revolving bail funds, especially those based on church and private property bond rather than cash, as in the Philadelphia Peoples' Bail Fund, to expand capacity to bail more people. This is a first step in breaking into the system: anyone with enough property or cash can be bailed out. • Organize programs for pretrial release with little or no bail. These should include: ROR programs with expanded eligibility thru established criteria and the goal of ensuring appearance for trial. Third party custody programs should be used for release of persons not eligible for ROR. Set up percentage cash bond programs (where defendants pay a percentage of their bail to the court, returnable to them upon appearance, rather than a similar but non returnable percentage to a bondsperson as a fee for a surety bond.) • Research your local bail industry and investigate the possibility of a taxpayer's challenge to the constitutionality of bail. • Research your local jail industry and support moratorium on construction of new pretrial detention facilities or expansion of old ones. The more pretrial detention capacity exists, the more will be used and the less pressure will exist to develop more just alternatives and abolish bail. Community dispute & mediation centers Mediation centers present a unique opportunity for grass roots involvement in the process of justice and excarceration. Abolitionists advocate the establishment of such centers in every neighborhood or community. These centers are to be based on the "moot" model, allowing both wrongdoer and wronged to be restored to lives of integrity and responsibility in the community. A large percentage of conflicts need never enter the realm of criminal court proceedings. The confusion and bitterness in court situations can be avoided, along with a possible criminal record and incarceration. Many disputes can be handled humanely in the community by the community, discarding the traditional adversarial approach of arrest/court/fine-or-prison approach. Community dispute and mediation centers decrease the number of those imprisoned and empower communities to develop reconciliation skills. By becoming the milieu for resolution of disputes which rise within it and by taking the responsibility for healing the disruptions, the community is validated as the logical determiner and provider of support and services. Thus its members are more able to exert power over their own lives. The high costs of court can be eliminated and the savings funneled into contributing to the costs of mediation centers and other services. Since economic limitations exclude the poor from many court options presently available to those with money, mediation centers situated in the midst of poor communities contribute to equalizing some of these inequities. They provide the alienated and the poor with a service which is a commonplace necessity for those who are wealthier. When disputants of high socioeconomic levels require mediation, it is provided by a highly paid psychotherapist, marriage counselor, attorney, family doctor or other advisors including ministers. [59] Facilities such as small claims courts, better business bureaus and government sponsored legal aid are designed to fill mediation needs, but in general they do not do a good job for poor people. Some are so under funded and overburdened as to give poor service. Others favor the rich and powerful because they are so complicated that they're out of reach of the average person. [60] Mediation & arbitration In recent years, several dispute settlement programs have been developed, drawing upon models of conflict resolution from such fields as labor management, psychology and psychiatry, sensitivity and encounter approaches and international relations. [61] Dispute settlement processes, which include mediation and arbitration, are "community oriented tools that will help people learn to help themselves and others in such a way that violent outbursts against people and property will be curtailed." [62] Mediation -- a process where the conflicting parties themselves agree on a mutually acceptable resolution with minimal intervention by a third person-seems more appropriate than arbitration to abolition principles of empowerment. In the latter, disputants give a neutral party legal authority to render a binding decision, after a full, fair private hearing. [63] However, both processes are far superior to the present criminal (in)justice systems in which the adversarial court model promotes conflict rather than settling it, creates injustice by ignoring the social context of behavior and allows manipulation and social control of the majority by the powerful minority. [64] The moot model Mediation, in contrast to the court model of adjudication, is based on the concept of a "moot." The moot is an informal airing of a dispute which takes place before neighbors and kin of the disputants. It is not coercive and allows the disputants to discuss their problems in an atmosphere free from the questions of past fact and guilt. The past is seen as a tool for the construction of future relationships. The very idea of the moot is to avoid a right/wrong dichotomy. It is to compromise; it is to look to the future rather than the past. But most importantly, it is to eliminate the concept of guilt. [65] The model moves away from a factory like emphasis on producing results (termed "decisions," "decrees" or simply "justice") and towards an emphasis on having each disputant develop his/her own view of events, while recognizing the opponent's perspective. The emphasis is on the disputants educating each other. [66] The moot model for settling disputes is an excellent example of abolition ideology in practice. A reconciliatory atmosphere is created in the setting where the conflict arose-the community-in order to encourage the disputants to express their differences, peacefully reaching a compromise. The focus is never to assign guilt to one party and innocence to the other. This "family" model of dispute settlement emphasizes the bonds existing between the disputants, the mediator and the community. It encourages expression of grievances and discussion leading to agreement by consensus. The process is not caught in the trappings of symbols of power-the courtroom, but in one's own community among equals. The possibility of the moot model's extensive use in our highly mobile and complex society presents an exciting challenge. Tho ours is a technological society where alienation is common, neighborhoods still flourish and other social and peer networks are maintained. Opportunities for dispute settlement on the moot model abound within these linkages and contexts. Many conflicting parties already know one another. Contrary to popular belief that most crime is committed by strangers, about one-third of the criminal cases in urban courts involve neighbors, family or friends. Half or more of all murders involve a close relationship between the victim and the wrongdoer. A study in the Cleveland (Ohio) Municipal Court, for instance, illustrates the number of conflicts in which people know one another. Of 1,034 cases, at least 30 percent were in essence neighborhood dilemmas and could easily have been handled outside the court. [67] Kinds of conflict/crimes Presently the cases most frequently handled by community mediation centers are small interpersonal disputes between friends, relatives and neighbors. Usually these are civil matters or misdemeanors. Often they are marital or family disputes (including common law relationships), involving paternity, support or separation conflicts. Other frequent cases include neighborhood squabbles, fights or harassment, simple assault, complaints about noise or other disturbances and tenant/housing manager disputes. The Columbus (Ohio) Night Prosecutor Program [68] works in three major areas:
Additional kinds of cases which some mediation centers are handling include:
Police most often cite settling disputes between family and friends as an unrealistic and dangerous demand upon them. Mediation centers, by dealing with conflict before it escalates to violence, diminish the need for police to serve a mediation function. In 1972, according to the F.B.I., 7,000 murders stemmed from family conflicts and 13 percent of all police killed in the line of duty died while responding to disturbance complaints. [69] The presence of mediation centers in all communities would substantially reduce the potential for murder of both civilians and police. The centers' scope could be considerably broadened to include many more serious crimes than they are presently handling. Communities need to decide which conflicts/crimes they can adequately handle. Abolitionist criteria Though the number of centers is comparatively small at this time, we can already learn a great deal from their experiences. Many models differ from the moot model and should be carefully evaluated. For instance, some programs are legalistically oriented. Law students are the mediators. The surroundings are formalized and legal rules involving evidence are sometimes imposed. The education of litigants and their community supporters is frequently neglected. At times these centers appear to be established as a convenience for lawyers rather than the people, because lawyers no longer have to bother with trivial disputes. Such programs are a far cry from the community moot concept. Based on the concept of the moot and abolitionist ideology, we recommend the following criteria for community mediation centers:
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