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)

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.