From our overstocked archives
Sam Smith, 1975 – We are staggering under the budgetary load created by the great expansion of the police, courts and prisons in recent years. We are not only paying a high price but we are getting little more with our money than we had before.
The conventional wisdom is that we must improve the police, reform our courts and make our prisons better places. I’m not sure we can wait that long.
There is another way of approaching the problem. First, most law enforcement comes not as a result of government action but is the product of a social compact between people, sometimes expressed and sometimes just tacitly accepted. This compact is re-enforced by the dominant values of a community, group pressures and the level of support given individuals by other members of the community. It is a part of what community is about.
Yet we find that the community plays no part in the maintenance of law other than peripheral roles as witnesses and jurors in court cases, often a deeply disillusioning affair.
If a youth is picked up for vandalism or purse snatching, it immediately becomes the city’s business—not the community’s.
This, seems to be dead wrong. While there may be little a community can do about murderers, rapists and bigtime drug dealers; there is plenty it can do about the minor crime and small civil cases that clog the court dockets and ultimately lead to the filling of the jails.
The community is far better equipped to deal with such matters than the police, courts or prisons. It could do so if we turned our attention from attempting to reform cops, lawyers and judges and set about to find ways of doing without them.
For one thing, we could have neighborhood constables.
Unarmed, with no uniform other than a badge and no powers beyond those of a private security guard, the constables could specialize in handling minor offenses and disputes.
The constable’s job would not be to turn people over to the police but to attempt to avoid that by diverting them into a community justice or arbitration program, or by helping to resolve disputes on the spot.
The community justice system could operate as a mixture of arbitration service, justice of the peace and small claims court. The arbiters should be selected by both the adults and the teenaged youth of the community, for if trouble-prone youths are to have any respect for the system they must be included from the start. There are numerous dangers to be avoided: the politicization and corruption of the system, the attraction of the role of judge to people who often are the ones you don’t want as judges, etc. But before you come down too hard on these issues, remember that almost every danger in a community justice system already exists in our centralized justice programs.
Part of the emphasis would be upon resolving problems through arbitration father than adversary proceedings.
Lawyers and the law, as now constituted, have a vested interest in keeping us at each others’ throats. We, on the other hand, have a vested interest in avoiding this.
How this might work in a small claims situation is easy to see. But let’s take a more difficult problem.
Say a kid had stolen something from a store. The store guard stops the youth and instead of calling the police, calls the neighborhood constable. The constable basically offers the kid two choices: either you will be turned over to the police and the manager will press charges through the downtown court system or the manager will withhold the complaint pending a hearing on the matter before a neighborhood arbitration commission (or community justice committee — any name that doesn’t include the word “court’.’) . At the hearing the matter to be resolved would be responsibility, not guilt or innocence.
For example, the youth (aided by another neighborhood citizen serving as an advisor) might be found responsible for the theft of goods. But testimony might also develop on other matters — that the store had a policy of harassing school age youths or that the youth had been recently expelled from school and was unemployed. None of this would be admissible in a normal court proceeding but in the context of community justice and arbitration it would all become important. If the committee found the youth responsible for the theft it would not punish the youth but present a plan for restitution for the damage done and resolution of the ancillary problems developed during the hearing. The restitution might be formalized in a three-way agreement between the youth, the store manager and the community’s representatives.
In it the youth might accept responsibility for the theft and make a commitment to provide restitution in the form of services or payments to the store and community.
The manager would agree not to prosecute the case and to arbitrate the dispute over harassment.
The community committee would assign a volunteer adult from the neighborhood to work with the youth and would attempt to deal with the school problem.
Notice how dramatically different such a course would be compared to the current practice. Instead of immediately putting the youth into the downtown system in which the offender is the pawn of judges, lawyers, police and prison officials, none of whom have any vested interest in the community in which the offense took place, the matter is approached in a way that the individual’s. relationship to the community is emphasized, responsibility is made more important than guilt, restitution more important than punishment and related matters that help to create the environment in which the offense took place are considered. Most importantly, the community would not excommunicate an offender but act more in a fashion to both mitigate the chance of repetition of the offense and provide the offender with help, (in cases where the offender comes from a community other than the one in which the offense took place, a joint community committee could hear the case.)
Obviously, such a system would not work with rapists or major drug dealers. But with the minor crimes in which youth is so often involved, as well as in minor civil matters, there is a strong chance that the community could do a far better job than the downtown system.; It is not an idealistic and romantic notion. In fact, the current practice is both idealistic and romantic, it presumes that an elaborate institution empowered to create law and justice can do so. It can’t; transgression is just too individual a matter.
Besides, I see little hope of reforming the metropolitan police, the downtown judges, lawyers or the prisons. They will never do the job right because their basic concept is wrong. They believe that human relations are adversary ones; and with their help their belief becomes self-fulfilling. If we want to change the system of justice we must start right in our own neighborhoods. And neighborhood government gives us that chance.
In 1785, George Washington wrote to Lafayette: “Democratic states must always feel before they can see. It is this that makes their governments slow. But the people will be right at last.” It is in our neighborhoods that we feel. And it is in our neighborhoods that we should be allowed to see and be right at last.