McMediation

After returning from studying the use of restorative justice in Mexico’s juvenile justice system, I began working as a mediator in a California court.   Initially drawn to the opportunity to help people work towards mutually agreeable solutions to their problems, I have since become more skeptical about the value of the mediation services provided through California courts.  

Court mediation sessions are quick, they emphasize speed over quality, and mediators are trained to take a cookie-cutter approach to crafting plans and agreements, whether or not these plans are best suited for the needs of the parties involved.  I have come to think of these court processes as the McDonalds version of mediation.  I have heard other mediators tell people, “If you need more time to reach an agreement, you’ll need to hire a private mediator.  We only have an hour and a half to help you here.”  That’s not much time to work out an agreement between two people entrenched in conflict.  Unfortunately, private mediators charge hundreds of dollars per hour and are not accessible to much of the general public.

My mind wanders back to the mediation trainings I have attended, and the importance of meeting with the parties individually in order to prepare for the mediation session.  I remember the mediation sessions I observed in Mexico, where the government allocated sufficient resources to mediation centers, allowing mediators to meet with the parties individually, sometimes even multiple times, before bringing them together for a mediation session. 

Maybe it’s a cultural issue – in the United States, we want quick, easy solutions to complicated problems.   We try to fix poverty with tax cuts, crime with prisons, and complicated social problems with police.  So I guess it should not come as a surprise that we also have quick and dirty “mediation” offered through the courts.  It’s a shame, because there is so much potential…

Restorative justice advocates warn that one of the greatest risks of restorative justice is that it will be co-opted, or implemented in such a way that it loses its values, or its essence.  Sadly, that seems to be what I’m seeing in this mediation program.

Due Process & Restorative Justice: Contrasts or Complements?

I have been writing and speaking a lot lately regarding the tremendous changes to Mexico’s criminal justice system, specifically with regards to the incorporation of the right to oral trials and to a host of due process rights into the National Constitution.  As a criminal defense attorney who cares deeply about civil rights and individual liberties, I am naturally supportive of due process rights.  In several recent presentations, I have referenced the documentary “Presumed Guilty,” which follows a case under the “old model” of the Mexican criminal justice system.  The documentary shows how an innocent man is convicted, in large part due to the lack of due process rights afforded to criminal defendants under Mexico’s old system.  Clearly, due process rights are important.

At the same time, I am inspired by restorative justice as an alternative paradigm for responding to crime – one that prioritizes healing and marginalizes the use of punishment merely for the sake of retribution.  Restorative justice processes, however, generally require people accused of committing crimes to admit guilt.  They tend to be more informal meetings, including discussions, where lawyers often do not participate.  As such, due process rights are not prioritized in restorative justice.  In fact, restorative processes have the potential to violate people’s fundamental due process rights if not implemented according to guidelines designed to protect these rights.

As a criminal defense attorney, I frequently advised my clients to use their rights to remain silent.  In fact, I have facilitated trainings that give people the opportunity to practice invoking their right to remain silent in a variety of situations.  I have represented clients whose statements have been used against them – many times, my clients disputed making these statements.  Other times, police used abusive, coercive, or other illegal means to obtain the statements.  I am inherently suspicious of a procedure that encourages someone accused of a crime to make potentially incriminating statements to law enforcement.

This is a dilemma – I am simultaneously an ardent supporter of due process while also being a strong advocate for restorative justice.  This is also a dilemma facing various states in Mexico as they struggle to develop new legal codes, many of which incorporate both due process rights and restorative justice procedures. 

One of the keys to resolving this apparent dilemma seems to be in the procedures set forth under the law.  In New Zealand, specially trained attorneys participate in restorative justice conferences, present to protect their client’s interests while also allowing their client to participate so that the process can move forward.  Given that most cases in juvenile and criminal court in the U.S. result in guilty or no context pleas in court, participation in a restorative justice process in which one admits guilt is not so different from what regularly happens in court.  In Oaxaca, the state’s law protects the confidentiality of statements made in mediation processes, thus minimizing the potential harm to people arising from statements made during restorative justice conferences. 

The key seems to be the extent to which a particular state or country’s criminal justice system buys into restorative justice.  If restorative processes are seen as a means of gathering additional information for law enforcement, for example, they have the potential to undermine due process.  If, on the other hand, key players in the justice system buy into the core values of restorative justice, there is greater potential for restorative justice and due process to complement each other.

Los Angeles Gangs in Oaxaca

Los Angeles is known as the gang capital of the world – it is home to hundreds of street gangs.  A recent documentary entitled Made in America, for example, traces the birth of the Bloods and the Crips  -- gangs now known around the world -- in the context of the history of Los Angeles.  Los Angeles has also given birth to other now infamous gangs such as 18^th Street and Mara Salvatrucha. 

The migration of Los Angeles-based gangs throughout the United States is well documented.  Similarly, the exportation of LA gangs to El Salvador, largely thanks to U.S. deportation policies, has received widespread attention.  Walking around the streets of Oaxaca, I began to see that Los Angeles gangs have also made their way to the relatively isolated city of Oaxaca, as evidenced by their graffiti covering walls all over the city.

The gangs most widely represented in graffiti in the city of Oaxaca are gangs with roots in Southern California -- 18^th Street, Vicky’s Town (VST), and Sureños, also represented by “13.”  MS is also represented in some graffiti, although it was not as prevalent as the others, at least in the areas I visited.  Another gang represented by “21” also has a presence in Oaxaca; however, I do not know whether the origins of this gang can be traced back to California.

In conversations with people who work in the justice system, the problem of gangs repeatedly came up.  The most violent incidents in the colonias – shootings and stabbings – are attributed to gangs. 

And then there was Zoila’s nephew. I got to know Zoila in Oaxaca.  I ran into her one day -- her eyes swollen and her face puffy.  “Mataron a mi sobrino,” she whispered.  “They killed my nephew.”  He had gone to the United States in search of work several years ago.  While there, he joined a gang.  She remembers that when he returned to Oaxaca last year he had MS tattooed in large block letters across his abdomen.  According to Zoila, he was shot because the gang in the colonia where her nephew lived did not get along with his gang.

                                                                                

At a time when the United States is funneling hundreds of millions of dollars into Mexico in support of efforts to combat drug trafficking and crime, it is ironic that we are also exporting a social phenomenon that is exacerbates these problems in many ways.

Centro de Esperanza Infantil (aka Oaxaca Street Children Grassroots)

Oaxaca Street Children, Grassroots, is a nonprofit organization dedicated to helping very poor children in Oaxaca to pursue education.  They have a variety of programs, including a drop-in center that provides meals, tutoring, classes, a computer lab, and a library.  Their other major program is a sponsorship program that matches largely foreign sponsors with a child in need; sponsors pay between $150 to $250 per year to cover the educational costs of the child, including tuition, supplies, and uniforms.

I started volunteering with the program because there is a tremendous amount of poverty in Oaxaca.  Oaxaca is Mexico’s third poorest state.  Many children sell trinkets or beg on the streets until late night out of financial necessity.  I was happy to find an organization that helps.

Initially, I also thought that volunteering in a nonprofit would be a good way to get to learn about different perspectives about the legal reforms in the state.  I recently started thinking about what restorative justice has to do with the work of the organization.  On the surface, not much.  The organization does not work with crime victims or offenders specifically.  It is an organization dedicated to providing for the basic needs of children and families.

However, most of the children who participate in the program are from indigenous communities.  Oaxaca is home to more indigenous residents than any other state in Mexico.  There are many communities where people speak their traditional languages and live according to their particular ethnic group’s ancient customs.  Over 16 indigenous languages are spoken throughout the state. 

Indigenous people in Mexico have historically been discriminated against, and they tend to be the poorest of the poor throughout the state.  The discrimination has been intense; in Chiapas, indigenous people could not walk on the sidewalks until recently.  They have also lost much of their land, which is their means of survival.  NAFTA, for example, has resulted in many subsistence farmers being unable to continue to make a living due to increased competition from large corporations who sell at a greater volume for lower prices. 

In a small way, a program aimed at providing for the needs of indigenous children is an attempt to repair some of the harm that has been done.  There are, of course, many other restorative justice-based efforts that could and should be made in this area.  But viewed in this context, the program has some restorative characteristics.  They rely on volunteers for many of their programs, and they are always happy to have new volunteers.  If you are in Oaxaca, it is definitely worth stopping by.  

Will Oral Trials Make a Difference?

Will oral trials make a difference?  This is a big question in Mexico right now.  There has been a lot of national attention paid to the Constitutional legal reforms happening in Mexico – the revision of the Constitution to require oral trials, and to give more due process rights to defendants accused of crimes.  The presumption of innocence (“innocent until proven guilty”) is new here – before the reforms, it had always been a system where you were guilty until proven innocent.  Confessions obtained my torture were recently forbidden to be used in court, and there are higher standards of evidence that a prosecutor must meet in order to prove someone guilty (i.e. “beyond a reasonable doubt”). 

One the one hand, these are major reforms.  New courtrooms are being built to house oral trials and hearings.  Lawyers are being trained in oral advocacy.  Judges are being trained regarding what these new legal standards like “beyond a reasonable doubt” mean.  Respected institutions from the United States, such as USAID, the American Bar Association, and universities are pouring resources into training legal professionals in Mexico about this new system.  Despite the enormity of these reforms, however, I keep wondering if any of this is really going to make a difference.  Will these changes bring more justice to Mexico?  Will they engender greater trust of the judicial system among Mexican people?  I don’t know…

In some ways, I am optimistic about the potential for the reforms.   Under the old system, people were often incarcerated in pre-trial detention for long periods of time while the government investigated the case.  Speedy trial rights did not seem to apply, and people were often left waiting for years.  Under the new system, there are strict timelines with regards to when a case must be brought to trial.  This seems to be a huge improvement.  In a trial, people will have the opportunity to see who the witnesses against them are; this is an improvement upon the former system where often defendants were not told who the witnesses against them were.  Similarly, outlawing the use of confessions obtained by torture is a good thing – it is unreliable information that can lead to the conviction of innocent people, and it is inhumane.

But…the citizenry of Mexico does not trust the judicial system.  I cannot stress this enough.  Virtually everyone I have spoken with has told me that if they were a victim of a crime, they would not report it.  There is a profound distrust of the system.  If this does not change, it is hard to imagine that changes to the form of a trial will bring about greater justice. 

Many of the criticisms of the old system will not necessarily be addressed by oral trials, particularly because there are no juries in Mexico’s new system.  One prominent critique of Mexico’s former judicial system focused on the large number of people who are in prison for stealing food to feed their families, or for stealing other items of relatively low value.  However, I can’t help but think of California, where thousands of people are serving life in prison for similar crimes because of the Three Strikes law.

The shift to oral trials will, at the very least, aid in increasing transparency – adult trials are open to the public, and people will have access to information such as witness names and testimony that were not readily available before.  This is a huge improvement.  Whether the reforms will impact the public perception of the justice system among the general population remains to be seen.  My hunch is that the success or failure of this new system will rest largely upon this.

Trauma and Restorative Justice

I was given a wonderful opportunity in December.  Proderecho, the organization in Oaxaca that has helped to connect me to the people and agencies responsible for juvenile justice here, invited me to participate in a course entitled “Seminars on Trauma and Resilience.”  My classmates were a group of inspiring women, and two men, working in NGOs in Oaxaca, and in the state prosecutor’s office.  The facilitators of the workshop were from Eastern Mennonite University in Harrisonburg, Virginia.

The central emphasis of the seminar is that trauma – when unresolved – leads to the infliction of further pain.  This pain can be manifested internally – in the form of depression, self-harm, anxiety, relationship problems, and emotional difficulties.  It can also be manifested externally, and can often cause those who have been victimized to act out towards others as victimizers. 

Paying attention to the needs of victims of crime, as well as of natural disasters and other traumatic situations, is therefore critical in order to reduce cycles of violence.  Unfortunately, the needs of victims are often overlooked in traditional criminal justice approaches to crime.  We focus on identifying the perpetrator, prosecuting him or her, and punishment.  Rarely are the needs of victims considered through this process.  Prosecutors represent the state, not victims.  Victims are often invited to court just to provide their testimony, not to offer input about how they would like to resolve the situation, or to express how the state could best meet their needs. For more information, check out:  Link to Video of STAR model re Trauma

I think, for example, of a young man who I worked with in Los Angeles.  He was a passenger in a car that got into a horrific accident.  One of the other passengers, who was also his best friend, died in the accident.  It was bloody and traumatic.  The driver was drunk, and was prosecuted in court.  The young man I knew was traumatized and had frequent flashbacks of the event that disturbed his ability to function.  He was subpoenaed to court as a witness.  He didn’t want to go, but was threatened with being sent to jail if he failed to appear in court.  On the witness stand, he was forced to look at graphic photographs of the event, resulting in even more negative effects on his mental health.  He was never asked what he needed in this process. 

How would our criminal justice system be different if we prioritized the needs of victims?  Restorative justice approaches do just that – the opinion, needs, and desires of victims are the driving force behind how a particular harm is addressed.  As part of Mexico's changing criminal justice system, victim's needs are being considered.  In many cases, victim's rights are being incorporated into the Penal Code and Procedures in a more inclusive way than in California, for example.

Graduation Ceremony for Restorative Justice Course

Following a month long course regarding mediation and restorative justice, which included members of the state Prosecutor's office, as well as representatives from community organizations, participants in the course were recognized in this graduation ceremony at the Restorative Justice Center of Oaxaca's state prosecutors office.  Panelists included the head prosecutor for the state, as well as the president of the state's Commission for the Defense of Human Rights.

This is a photo of my and my classmates:  

Link to Article re. Graduation (in Spanish)