Circles of Peace

Circle processes are one of the cornerstones of restorative justice.  There are a variety of specific purposes that circles can be used for -- talking circles, sentencing circles, re-entry circles, etc.  Such processes have been used for many years among indigenous communities around the world.  The beauty of the circle is that it allows for a special time for each member of the circle to speak, while everyone else listens.  Although it may seem simple, it is powerful.

Typically, a circle begins with one person introducing a talking piece, which is then passed on one-by-one so that each member of the circle has an opportunity to speak.  Only the person with the talking piece may speak; everyone else listens.  The circle may go around once, or it may go around many times.  One of the keys of circle processes is that wisdom, knowledge, and ideas are pooled and shared.  Another is that the process allows time for anger or intense emotions to cool down while one waits for their turn to respond.  It also brings various resources to bear on a particular issue or problem.

But the most powerful aspect of circles that I have been a part of is that the process itself cultivates empathy among the group members.  Listening to other people’s thoughts, struggles, and experiences humanizes them, and highlights the commonalities of human experiences.  And really, this is the key to creating more just, peaceful approaches to responding to crime.  According to Howard Zehr, “a central goal of restorative justice is to reduce social distance and ‘othering,’ thus increasing possibilities for empathy, accountability, and dialogue.”

I just completed a month long course about restorative justice facilitated by Proderecho in Oaxaca.  Every morning, we began the day with a “circulo de paz.”  During these circles, we spoke about our families, friendships, health, hopes, and struggles.  Over the course of the month, deep connections were formed through this process.  One of the most powerful aspects of this experience was that the participants in this course included employees of the government’s prosecuting agency, as well as community members who struggle against the corruption and abuse within this very agency.  Participants entered the course with deep sentiments of distrust.  By getting to know each other as individuals – through the circle process – these feelings of distrust, anger, and pain dissipated. 

Circles help us to express the truest, most divine aspects of ourselves – and help us to identify those aspects of other people as well.  In the practice of yoga, people often end a class by saying “Namaste.”  I have heard this translated to mean “the divine in me salutes the divine in you.”  Underneath our human exteriors, there is a divine essence within each of us that is good – that is deserving – that is human.  Remembering this – even when people do things that are wrong – is so important.  Circle processes facilitate this recognition.

Namaste

Oaxaca's New Juvenile Justice System

             Throughout the entire country of Mexico, states are designing and implementing completely new criminal processes in response to an amendment of the national Constitution in 2006.  Within the adult criminal justice system, criminal defendants have the right to oral trials for the first time in the country’s history.  Along with the right to oral trials come accompanying due process rights, such as a presumption of innocence, the right to counsel, the right to remain silent, the right to a speedy trial, and the requirement that the government prove a defendant’s guilt beyond a reasonable doubt.  Many of these reforms are similar to the American legal system.  One major difference is that in Mexico, there is no right to a jury trial.  Guilt or innocence is determined by a panel of 3 judges instead.  

            Each state is responsible for modifying its own penal code, in accordance with the general standards set forth in the national Constitutional amendment.  Juvenile justice processes are an important component of this reform.  Until now, many states operated juvenile delinquency proceedings as an administrative process with no due process rights or procedural safeguards.  The Constitutional reform requires each state to develop juvenile delinquency procedures that incorporate the same rights and protections afforded to adults.  This is a major change.

            In response to the Constitutional mandate, the state of Oaxaca began to develop a juvenile justice system three years ago.  Starting from scratch, they turned to other countries to learn about successful models for juvenile courts.  They learned that particularly within the context of juvenile courts, most cases do not go to trial, but rather resolve through alternative processes.  In designing their system,  the state of Oaxaca wrote restorative justice processes into their juvenile justice procedural laws. 

            The great majority of juvenile delinquency cases in Oaxaca are resolved through restorative justice meetings that bring together the victim, offender, and their respective family members in order to develop appropriate sanctions for the offender and appropriate reparations for the victim.   Psychologists and attorneys who work at the state’s Center for Restorative Justice do a great deal of preparation with the offenders, victims, and respective family members prior to facilitating the meeting that brings the parties together.  They have had quite a bit of success with this model, and have resolved serious cases including shootings and manslaughter through restorative justice meetings.  I will explore the process in more detail in a subsequent entry.  For now, I bring this process up to highlight the difference in the procedure for resolving cases in Oaxaca as opposed to in most U.S. jurisdictions.

                        In California, most juvenile delinquency cases do not go to trial.  As in Oaxaca, most resolve through alternative processes.  There are many stages from the point of arrest through trial where juvenile cases can be diverted, dismissed, or negotiated within the California court process.  Once a formal complaint has been filed in court, the most common way that cases are resolved is through a process of plea bargaining, where the defense attorney and the prosecutor negotiate a sentence in exchange for an admission of guilt by the accused young person.  This typically occurs in busy courtrooms and hallways where lawyers plea bargain in the midst of meeting with clients, conducting hearings and trials in court, and interviewing other clients. 

            In contrast, Oaxaca’s process takes the negotiation process out of the courtroom and into an environment where professionals specifically trained in the art of mediation and restorative justice conferencing spend a substantial amount of time with all of the parties involved.  Within this context, they work with the people directly involved to try to come to a resolution that satisfies everyone’s interests.  I have spent a substantial amount of time observing these processes.  Despite my initial discomfort with taking cases out of the realm of the courtroom, where procedural protections apply and lawyers ensure their clients use their right to remain silent, I have been impressed with the integrity, empathy, and neutrality demonstrated by the restorative justice facilitators.  They may be on to something J

Peace and Justice in Cuajimoloyas

Cuajimoloyas is a small mountain community in the state of Oaxaca with a population of 900.  Its residents are Zapotecs, descendants of the ancient civilization responsible for constructing Monte Alban, the site of the ruins pictured in various photos on this blog.  The older residents of the pueblo still speak Zapoteco, although younger generations generally speak Spanish.  Until 40 years ago, there was no road leading to Cuajimoloyas.  I had the opportunity to visit this community this past weekend, enjoying beautiful hiking trails and interesting conversations with members of the community.

Given that this is an indigenous community, the land is communal, and the pueblo has its own system of governing itself, separate from that of the state of Oaxaca.  Each year the pueblo elects a “Municipal Agent,” who is essentially the leader of the community.  The community is governed by “usos y costumbres,” a system of customary rules.  A sense of community responsibility is intrinsic in these “usos y costumbres,” such as a requirement that each community member dedicate him or herself to community service full-time for one year, every two years.  Such community service may include working at the school, in the government, constructing infrastructure such as roads, or working in the community’s Eco-Tourism department.

I was intrigued by the way that the community addresses conflicts, or violations of the law.  According to the residents I spoke with, the community has very little conflict or crime.  This is due in part because the community is close-knit; with a population of only 900, everyone knows one another.  Further, family ties connect many community members.  In addition, the community imposes strict consequences for violations, including permanent banishment from the community.  A woman told me about an incident that happened a couple of years ago where 2 young men stole a chain saw that they found in the forest.  The community had a meeting to determine the appropriate sanction, and the decision was that the young men be banished.  Children are raised with the knowledge that failure to abide by the rules of the community will result in certain and swift punishment, including potentially being removed from the community. 

Deterrence theory is an important criminological theory that asserts that future crime will be prevented if punishment is certain, swift, and appropriately proportional to the crime.  Much of the current criminal justice system of the United States is built upon deterrence theory.  I am of the opinion that policies based upon deterrence theory are largely ineffective in the context of the United States.  Deterrence theory is based upon the premise that people understand the consequences of their actions before they decide to commit a crime, and that people engage in a rational cost-benefit analysis prior to deciding to commit a crime.  This belief drives policies that continue to put harsher and harsher sentences on the books, under the guise that sentences must not be harsh enough if people continue to engage in crime.  There are two major problems with this belief:  (1) most people who commit crimes are unaware of the sentencing schemes written in the Penal Code; and (2) most people who commit crimes do not engage in this type of rational cost-benefit analysis prior to engaging in criminal behavior.

But deterrence theory does seem quite applicable in the context of Cuajimoloyas.   Maybe because the community is involved in determining sanctions, as in the case of the community meeting that determined that banishment was the appropriate response to the theft of the chain saw.  The public and inclusive nature of this process means that people are by and large aware of the consequences.  In addition, the small population and importance of community norms and customs make deterrence theory more relevant in that people are more likely to be caught for wrongdoing, and consequences are more certain.  

 

Towards a Culture of Justice

“…la reforma mas importante es la cultural y mental, pues no basta  con la creacion de nuevas normas o insticuciones para resolver nuestros problemas…se requiere una cultura juridica alternativa, con una nueva forma de pensar el derecho, mas justa, mas digna, mas humana.”  

-M.D. Jose Luis Eloy Morales Brand (2006)

Because I‘m living in a foreign country, I am more conscious of culture – both my own and other people’s—than I usually am in Los Angeles.  Through food, music, language, and day-to-day life, I am constantly encountering different aspects of life and culture in Oaxaca.   

While I’ve been observing within the juvenile prosecutor’s office here, I have been noticing subtle differences in the culture of their organization that stand in contrast to the culture of the prosecuting agencies in Los Angeles.  Although it is too early to draw definitive conclusions, there are interesting aspects of the language, values, and orientations of the juvenile prosecutor’s office here that lead me to believe that there is a different kind of culture being developed within this office – one that is rooted in an understanding of adolescent development and the idea that juveniles who commit crimes deserve another chance.  

These differences are apparent through the language prosecutors use to describe juveniles being charged with crimes.  They refer to them as adolescents, or youth, here.  (In contrast to my conversations with prosecutors in Los Angeles, I have not heard prosecutors here refer to youth as “monsters,” “scum,” “predators,” or other derogatory terms).  In almost every conversation I have had with members of the juvenile prosecutor’s office here, I have heard references to international human rights treaties and the importance of protecting the rights of children accused of crimes.  (Many of these are treaties that the United States has not signed because our juvenile justice policies violate the terms of the treaties).

The prosecutor’s office here also seems to have infused within its members an understanding of adolescent brain development, and a belief that it would not be right to hold an adolescent to the same standard as an adult because adolescence is a time for maturing and developing.  (In the U.S., although the Supreme Court finally decided that it was not right to allow the death penalty for juveniles because of research about adolescent brain development, juveniles are still regularly prosecuted as adults).  The prosecutors here also seem to believe that it is important to give young people the chance for redemption – for rehabilitation -- and for the chance to move forward with their lives without facing stigma or other negative consequences such as strikes, priors, or convictions that appear on their records as a result of their contact with the juvenile justice system.  

If you have not had many interactions with prosecuting agencies in the United States, the values I have described above may not seem unusual.  They seem like common sense in a lot of ways.  If, on the other hand, you have interacted with prosecutors in the U.S., you will probably agree that the core values I am describing are very different than the core values of many prosecuting agencies in the U.S., or at least in L.A. 

The quote that appears in Spanish above is from an article written by M.D. Jose Luis Eloy Morales Brand in a discussion about judicial reforms for adolescents in the Mexican state of Nueva Leon.  Loosely translated, he is saying that “…the most important reform is cultural and mental, it is not enough to create new norms and institutions to resolve our problems…it requires an alternative judicial culture, with a new form of thinking about law, more just, with more dignity, more humanity.”  This makes a lot of sense. 

Without the actors who make the law come to life, the law itself is essentially meaningless.  The way it is enforced gives life to what otherwise would just be words on paper. To truly reform a legal system, deep cultural shifts are necessary.  It is interesting to see what seems to be the beginning of a radically different approach to prosecuting adolescents. 

oaxaca's juvenile hall

Oaxaca has one juvenile detention facility for the entire state.  This was a shock to me, coming from Los Angeles where there are at least 24 juvenile detention facilities within the County alone.   Moreover, there are currently only 26 youth (25 young men and 1 young woman) who are currently incarcerated in Oaxaca’s juvenile hall.   I immediately wondered if the reason for so few incarcerated youth was that they are sent to adult facilities.  However, I have come to learn that unlike California, Oaxaca does not incarcerate juveniles with adults under any circumstances… There are actually only 26 youth under the age of 18 who are detained in the entire state of Oaxaca.

This may be due to the state’s reliance on alternative approaches such as mediation and restorative justice to respond to juvenile crime.  There are likely other factors at play here as well, although I do not yet know enough to explore this topic in detail.  I suspect that many people who are victims of crime do not report incidents to law enforcement due to a lack of trust.  Nonetheless, the numbers are intriguing.

I went on the tour of the juvenile hall this week.  I was impressed with the services that are provided to the incarcerated youth, as well as with the culture of the institution.  During the tour, I met various employees and observed their interactions with the youth.  An overall attitude of caring and respect was apparent.

Each week the staff develop an individualized plan of daily activities for each young person, based upon their specific needs and interests.  Vocational classroom activities include carpentry, electrical work, a bakery, and a class where the youth learn a traditional art form using sheet metal.  (The metallic rose pictured above was made by one of the youth in this art class). There is also a computer lab, a library, a gym, outdoor recreational facilities, a cafeteria, and educational options ranging from basic literacy to university classes.  The center has 4 psychologists on staff who provide psychological services to the youth.  In addition, the medical ward includes a doctor and a dentist.  The wide variety of vocational classes, as well as the very low staff to youth ratio, are a luxury by Los Angeles standards.  This is ironic given that L.A. has more economic resources than does Oaxaca, one of the poorest states in Mexico.

The director of the center informed me that there is a 0% recidivism rate, if we calculate recidivism based on the commission of a new offense.  He acknowledges that some youth have returned because they have failed to comply with the equivalent of probation or parole conditions, such as attending school or participating in community service.  But over the past two years that the facility has been in operation, no one who has been released has been arrested for committing a new crime.  This too is shocking to me given that recidivism rates in California tend to be between 60% and 90%, depending on the facility and how the rate is measured.  This is particularly impressive because Oaxaca only incarcerates youth for the most serious offenses, such as homicide, rape, kidnapping, and bank robbery.

How do they have such success?  The facility’s director credits using empathy, respect, and setting appropriate boundaries with the youth.  He also values offering vocational opportunities that the youth are interested in to provide them with skills, and to keep them busy.  I would add that the staff to youth ratio, which is around 1:1 by my calculations, must help quite a bit. 

A local prosecutor who has visited a Los Angeles juvenile hall told me today that although the buildings of the Los Angels facility may be nicer, it was missing the element of humanity that is present in Oaxaca’s facility.  Although this is ironic in a country where torture is a very real problem entrenched in the criminal justice system, it rings true with what I saw.  Sometimes the best practices are simple – treat people with humanity, empathy, and respect.  Provide individual attention, psychological support, and educational opportunities. 

It may seem simple, but it seems to work.  

letting justice flow

Last week I went to the ruins of ancient Zapotec capital Monte Alban, just outside of Oaxaca City.  Perched on top of a mountain, the ruins are spectacular.  While wandering around, I came across the remains of a ball court.  The plaque that explained the ball game for tourists such as myself indicated that the Zapotecs used this ball game as a means of conflict resolution.  When there was a conflict with a neighboring group, for example, a ball game was convened.  The idea was that the right person would win.  That the will of the gods would be expressed by who won the game.  And that this would be respected as the right outcome to the conflict.  (As a side note, the plaque also stated that there is no evidence that the Zapotec ball game resulted in death for the loser, as in some other cultures).

            This got me thinking… what would it mean to have a process for addressing conflicts through which the will universe – God – a higher power – energy – love – could flow?  So that the right outcome just becomes apparent?  So that we could transcend our limitations, biases, and all of the other stuff that interferes with our clarity – to arrive at justice…

            Last May I participated in a yoga teacher training taught by Erich Shiffman.  He emphasized the importance of meditation in order to tap into yourself, and therefore into the universe.  So that if you are “tuned in,” you are not left to figure things out on your own – it is more a matter of letting the universe guide you, and flow through you.  At the time, I wrestled with how to incorporate this practice into my work in the Los Angeles court system.  I felt uncomfortable with the idea of letting things flow, because I felt like I would be allowing injustice if I didn’t intervene.  They way I interpreted this concept into my work-day was to regularly pause, connect, and see what would happen next.  But it was hard to let things flow in the midst of such a rigidly constructed, adversarial system.

            The U.S. criminal justice system is comprised of such elaborate rules, strict procedures, and decision-making power concentrated in the hands of a few people.  It is a system whose structure inherently impedes the flow of energy.  I wonder how we could create a process that would be more amenable to being influenced by justice, righteousness, love, God, etc…

            Since I have been in Oaxaca, I have been learning about the creation of the state’s juvenile justice system – a process that began only 3 years ago.  It is fascinating to observe how systems, procedures, and programs are being designed at such an early stage in the creative process.   Most cases in the juvenile justice system in Oaxaca seem to be resolved through restorative justice conferences, where the victim, offender, family members, and other affected community members meet to develop mutually agreeable solutions.  This seems to be a process that is more amenable to letting justice flow through.

            Of course the lawyer in me also gets nervous about the idea of letting go of procedural safeguards…but that’s a whole other post.

community based mediation centers

The government of Oaxaca has established 54 mediation centers in cities and small towns throughout the state.  Each center houses at least one trained mediator who is available to facilitate mediation sessions at no cost to the participants.  These are places where people can go for help and support in resolving all types of conflicts, ranging from family disputes to contractual disagreements.  The state is committed to expanding access to mediation services, and the number of mediation centers is growing rapidly.  When I was in Oaxaca one year ago, there were 30 centers.  In just one year, 24 additional centers have been established!

            At a time when Mexico is reforming its criminal justice system to be more like the U.S. system – with oral hearings and trials for the first time in the country’s history – there is a lot that the U.S. can learn from Mexico. Mexico’s court systems are not set up to handle the often time-consuming procedures associated with oral hearings and trials.  In the past, court proceedings have occurred purely in written form.  As you might guess, once lawyers have the opportunity to speak in court, things tend to take longer!   So it is perhaps out of necessity that in the process of designing new procedures to include oral trials, the state of Oaxaca is incorporating alternative ways for people to resolve conflicts. 

            Aside from the issue of volume, there are other reasons why localized mediation centers are critical in Oaxaca.  Firstly, there is the issue of geography.  Oaxaca is comprised of two large mountain ranges.  Many of the states’ residents live in rural, geographically isolated areas.  Streets and highways are costly and therefore scarce in the midst of such enormous mountain ranges.  And so for someone who lives in an isolated village to seek help from a court in the nearest city would be extremely difficult.  Without a community-based option, many people would have no access to government assistance when they have a conflict (which could otherwise likely be defined as a legal issue.)

In addition to geography, there is the issue of communication.  Within the state of Oaxaca, there are many people who do not speak Spanish.  In many communities, the primary language is one of 16 different indigenous languages.  Due to the language differences, it is even more important that community-based mediators be available to communicate with people at the local level, using the appropriate language and cultural framework in order to successfully mediate conflicts.

At first glance, the issues facing Oaxaca are very different from those in Los Angeles, or in other urban areas of the United States.  Upon a deeper inspection, however, there are common threads.  In Los Angeles, for example, one court building handles cases from a large geographic radius, making access difficult.  Geographic access if even more of an issue given the territorial nature of gangs in the city.  Travelling from one community to another means risking being killed for people with gang associations, for example.  Perhaps even more importantly, courts and law enforcement offices are not set up to be culturally specific.  And although the Los Angeles court system has plenty of interpreters to address the issue of language, true communication often involves a cultural specificity that goes deeper than language.  Having community-based mediation centers staffed with mediators familiar with the particular geographic and cultural issues of the community they serve could lead to more meaningful conflict resolution.

A mediator in Oaxaca explained to me that the mediation centers are “an open door” before someone turns to the formal court system.  Participation is voluntary, and the parties to the conflict themselves develop a solution.  As he was talking, I was thinking about the parents who would bring their children to the juvenile court where I worked as a public defender in Los Angeles.  Even though their children had not broken the law, parents would bring them to the court building because they did not know where else to go for help.  Similarly, many other parents called the police to respond to family disputes because they did not know where else to go.  Imagine if there were accessible community mediation centers that people could turn to for help…