Conflict Intervention as Crime Prevention
Table of Contents
Institutional Impact – Prosecutors' Offices
Evidence-Based Impact and Importance
Restorative interventions can help ease case congestion, maximize the efficient allocation of limited prosecutorial resources, improve perceptions of procedural justice, and reduce offender recidivism.
Significant outcome variance for ostensibly carbon, low-level offenses212 challenges offender, victim, and community perceptions of fairness. In this era of masses – mass arrest, mass conviction, and mass incarceration – mediation and restorative interventions can serve as effective tools for disaggregating disorder and re-individuating our responses to crime.213 These services can re-sensitize the case to its specific circumstances and re-individuate offender consequences and victim recompense. Each outcome can be uniquely tailored to the needs of those directly involved; each an opportunity to restore actual people, rather than deliver rote administrative sanctions.214 Unlike the perceived unfairness of prosecutorial discretion, however, the inherent subjectivity of these alternative processes justifies their bespoke outcomes as being appropriately responsive to each conflict’s unique qualia.
Partnerships with service providers reduce recidivism by offering prosecutors a useful non-jail sanction215 and offenders a fair, perspective-expanding experience. Compared to probation sentences, prosecutor-initiated diversions to restorative programs can reduce offender recidivism by up to 31% for three years post-disposition, even among medium- and high-risk offenders and even when victims do not directly participate.216
NYC Performance and Potential
Unfortunately, despite these benefits, despite performance standards encouraging their utilization,218 and despite the estimate that these interventions would be appropriate for at least 10% of cases processed by NYC prosecutors,219 the prosecutorial embrace of mediative and restorative interventions has been slow and remains loose.220 With the noted exception of just a single Bureau within the Brooklyn District Attorney’s Office,221 service providers’ efforts to establish meaningful access to and referral partnerships with NYC prosecutors’ offices have been largely unreciprocated and ultimately unproductive.222
Where the relationship is working, such as in the above referenced Brooklyn Bureau, the results are profound and should be prophetic for those other Bureaus and Districts that have yet to follow suit. That Bureau’s staff has received training in how to identify appropriate cases and now discuss the available processes with both victims and defendants. As a result, new cases are identified and deferred daily, improving not only the perception, but the actual provision of justice to hundreds of clients each year in that Bureau alone.
“I would rather the victim and defendant work to resolve their issues than for us to offer a standard solution and say we’ll see you again later... [In this regard,] mediation offers a better solution than what the system would likely otherwise provide.”
- Serena Townsend, Deputy Bureau Chief, Brooklyn District Attorney’s Office
Figure 24. Prevalence and Preventability of Criminal Cycling217
Prosecutorial referrals of misdemeanor cases to mediation can reduce offenders’ probability of returning to criminal court by 80%
212. Worden, A.P., McLean, S.J., Kennedy, M. (2013).
213. For a detailed analysis of the practices and pitfalls of aggregating the identification of and responses to misdemeanor crime in urban contexts, see: Natapoff, A. (2013).
214. Service providers’ ability to substantially individualize their clients’ intervention experiences perfectly embodies the emerging research into ‘what works’ in crime prevention, which has become increasingly concerned with maximizing intervention personalization (Lösel, F., 2012).
215. Minimizing pretrial detentions, such as through adjournments in contemplation of dismissal (ACDs) entered at arraignment rather than even 24 hours later, can have a significant impact in offenders’ subsequent pretrial and post-disposition convictions, including rates of failure to appear. In fact, “detaining low- and moderate- risk defendants, even just for a few days, is strongly correlated with higher rates of new criminal activity both during the pretrial period and years after case disposition; as length of pretrial detention increases up to 30 days, recidivism rates for low and moderate-risk defendants also increases significantly” (Lowenkamp, C.T., VanNostrand, M., Holsinger, A., 2013).
216. Importantly, this finding is from a study of offenders facing sentences of at least six months in jail, suggesting restorative interventions are not exclusively appropriate or beneficial for low-risk, low-consequence offenders (Bonta, J., et al., 2002).
217. “Prosecutors possess nearly unfettered discretion to charge or to decline to charge, and thus are the most powerful actors in the criminal justice system” (Howell, K.B., 2014). In fact, local prosecutors have a direct influence on the trajectory of over 60% of the criminogenically consequential criminal justice encounters occurring each year (see supra note 194). For 2014, this influence informed the trajectories of nearly 215,000 criminal misdemeanor cases that, according to recent research would be both appropriate for and preventatively responsive to mediated diversions; resulting in participating offenders being five times less likely to re-enter the criminal justice system during the subsequent 12 months (Charkoudian, L., LaChance, H., Walter, J., 2016). If diverted at scale across all Borough DA Offices, an estimated 10,700 misdemeanor offenders could be prevented from recidivating and re-entering the criminal justice system.
218. Mediation and restorative justice interventions are held out as exemplary approaches to prosecutorial problem solving, one of the key principles of Community Prosecution (Jansen, S., 2009). Additionally, the National Association of Pretrial Services Agencies’ (2008) Performance Standards and Goals for Pretrial Diversion/Intervention notes within the commentary to Standard 1.2 that diversion/intervention programs are important for victims’ ability to “receive restitution and/or mediation to recover both financial and psychological losses.” Further, in the commentary to Standard 5.4, victim-offender reconciliation and mediation interventions are singled out as a “very effective way to determine acceptable ways to repay the victim through non-monetary means.”
219. According to Serena Townsend, a Deputy Bureau Chief for the Brooklyn District Attorney working with some of NYPD’s busiest precincts (63rd, 69th, 77th, and 88th), cases best suited for mediation are assault and select petit larceny cases where the victim and offender are known to one another. For her Bureau, this means at least one, but often several cases are evaluated for mediation daily. This evaluation process, however, could be improved, including through exploring additional contexts similarly appropriate and likely receptive to such interventions, as well as by incorporating options for victims to opt into mediation even if prosecutorial staff had not initially considered their cases for mediation evaluations.
220. Many factors have worked against the robust endorsement and utilization of mediation and restorative justice interventions for criminal matters, though none likely more influential than the perceived political precarity such a position may present for elected prosecutors concerned with appeasing the public’s long-standing – though evidentiarily illogical – desire for ever-tougher responses to crime (Laflin, M.E., 2004). In such an atmosphere, diversions to mediation and restorative justice services may be perceived by some within the electorate as going “soft on crime” – rather than their more accurate labeling as “smart on crime” (McLaren, K.L., 2000) – and, therefore, tantamount to political suicide. (Joseph, K.L., 1996).
221. Even in the Brooklyn District Attorney’s Office exemplar, the referral partnership’s predominant reliance upon a single gatekeeper means a shift in DA attention or the regular transitions of career trajectories could feasibly dismantle the referral pipeline overnight. While not uncommon, this type of person-dependent partnership is difficult to re/establish and underscores the precarity of having service providers’ contract milestones and associated funding dependent upon the continuity of inherently adjuvant, dynamic factors.
222. For example, even when the victim of a crime often-mediated in non-NYC jurisdictions was a service provider staff member who actively lobbied for the use of restorative services to supplement existing prosecutorial processes, those repeated requests were unceremoniously disregarded.