We must transform criminal justice system
First published Saturday Standard, October 6, 2018. Kindly reproduced here with permission from the Standard Group
Coming a week before the World Day Against the Death Penalty, my recent conversation with U.S Judge Victoria Pratt will inspire me for a while. As we mark the day on October 10, she may have a few simple ideas that could transform the Kenyan criminal justice system
From the overcrowded jails in Africa and Asia to the prison-industrial complex of the United States, thousands of young men and women find themselves locked into courtrooms with only one exit, prison or a death row.
According to the National Council on the Administration of Justice, police officers and county askaris arrest four million people every two years. 70 per cent were arrested on petty offences such as drunk and disorderly, trading without a license, commercial sex, fighting, petty theft and fraud. Over 85 per cent of those who are remanded and imprisoned do not have legal representation.
Depending on the speed of that conveyor belt we call the criminal justice system, they then stream into already saturated prisons. 55,000 inmates cram into prisons with a capacity of 30,000.
Criminal justice runs on the assumption that you and I fear punishment. This assumption is also behind the tough language of the Education Ministry’s attempts to stop exam cheating and destruction of property. The signs that this is not working is evident in our crowded jails, repeat offenders and our overworked judges. Judge Pratt has a different approach. It is one that we could learn much from.
Based in Newark near New York, her court serves about 250,000 people. Many of the offenders who come before her are under-educated, unemployed, poor and people of color. 85 per cent of them have substance abuse addictions, mental health challenges or both.
Spiraling gun violence and crime in communities, schools and shopping malls has provoked zero tolerance policing. The criminalization of an increasing number of youth and even children is the result. Former President Obama put it even more starkly, the U.S. has 5 per cent of the world’s population but 25 per cent of the world’s prisoners.
Judge Pratt believes in the emerging theory of procedural justice. She starts with the belief that all who come before her court are also persons in crisis. Courts should not be places of punishment therefore, they are places for correction.
She engages defendants in dialogue with the intention that they be left with her sense of fairness, respect for them and a real interest in them turning a new path. People will obey the law not because they fear it but because they accept that its authority is legitimate, she argues.
With this approach she has found that her authority, court orders and the law are more likely to respected. The community service orders she issues are completed with fewer violations and she now writes far less warrants of arrests and jail sentences.
These simple ideas have the capacity to transform criminal justice systems all over the world. Rather than judges and magistrates that sit in high chairs, peer down and often mumble legal-ese before passing formulaic judgements, there is now the possibility of court-rooms that leave individuals transformed and out of our jails.
Some of the ideas Judge Pratt holds underpin our Community Service Orders Act. Routinely, a combined taskforce of the judiciary, prisons and probation services led by its Chairperson Justice Luka Kimaru recommend the release of petty offenders serving sentences of three years or less.
If mass incarceration will not dramatically reduce levels of crime, then punishment by death will not either. The death penalty also offends internationally agreed human rights standards.
This week, 24-year-old Zeinab Sekaanvand was executed by Iranian authorities for killing her husband. She was only 15 when she was married to him. Her husband was often violent and her brother-in-law raped her repeatedly. Her many requests for protection were ignored by the authorities. In her trial she argued she had been coerced to plead guilty to the murder. Despite all this, they executed her anyway.
Her story sadly echoes across the 23 countries in the world that still practiced this barbaric practice in 2017. Most people who end up on death row are young, marginalized or damaged by neglect and violence in their communities. Most are poorly legally represented. Some have been found to be innocent after death.