Danielle Sered is the founder and director of Common Justice, which works with the Brooklyn District Attorney’s office and crime victims to negotiate alternatives to prison for people who commit violent felonies. Her report, “Accounting for Violence: How to Increase Safety and Reduce our Failed Reliance on Incarceration,” has just been published by the Vera Institute of Justice. She talked to TMP’s Bill Keller. The interview has been edited for length and clarity.
One of the myths of criminal justice reform is that you can cut the prison population in half by freeing non-violent offenders: the guy who sold a little weed to his classmates, the shoplifter, people who have done stupid things but aren't necessarily scary. As you know, more than half of those who are incarcerated are there for violent crimes, and many of those who are sentenced for nonviolent crimes plead down from more serious charges. These are people who frighten us — and they really frighten politicians. You want us to think differently about them. Explain.
I think there are a handful of reasons we have to think differently about how we approach the question of violence. The first relates to what you just said, which is that we will not end mass incarceration without taking on the question of violence. We have a choice. We either give up the aspiration of ending mass incarceration or we steer into the question of what to do about people who commit harm.
The other reason is that if you ask survivors of violent crime what they're worried about, it’s people who may hurt them. And many don’t trust police to protect them. We know that fewer than half of victims of violence call the police in the first place when they're hurt. That's a profound indictment of our system.
Let me pick up on that. In your report, "Accounting for Violence," your first principle is that the response to violent crime should be survivor-centered. What if the thing the survivor really needs in order to feel safe is to just lock away the bad guy for a long, long time. How much should that weigh in the outcome?
A survivor-centered system is not the same as a survivor-ruled one. We never would argue that what a crime survivor wants should be the only factor we take into account. If a crime survivor wants somebody free and we have real reason to believe that person will go on to hurt other people, then we may have an obligation to incarcerate that person.
Similarly, if the survivor wants a really harsh sentence, we should listen to that. We should heed it, but we shouldn't be driven exclusively by their pain. Centering survivors means consistently listening to survivors. It means taking their input seriously. It definitely means stopping the practice of advancing policy reform in their names without having asked them in the first place what they want.
Another of your principles is that policies should be accountability-based and you call on us to, I'm quoting from your report, "Make a commitment to real accountability for violence in a way that is more meaningful and more effective than incarceration." What kind of alternative forms of accountability do you have in mind for, say, someone accused of a violent crime, of a rape, or an assault, or a murder.
Common Justice, the project I direct, doesn't work with rape or murder, but we do work with assault cases and use a restorative justice practice to address that harm. Restorative justice has been demonstrated both to meet the needs of victims and to reduce recidivism, which means we can deliver on healing and safety at the same time. We don't have to choose between them.
What's powerful about those kinds of processes is it forces somebody who has committed harm to come face-to-face with the human impact of what they've done. That is a hard thing to do and we know from our experience it is often also a transformative thing to do. One of the problems with prison is that there is never a time in the prisoner's incarceration where they are required to actually grapple with the impact their choices had on other people's lives.
We've ended up with a country that is very rich in punishment and very poor in accountability. It's our belief that we have to right those scales.
It might help if you would talk me through a typical restorative justice case. How does it get started? How does it play out?
Some restorative justice projects are embedded in the criminal justice system and others aren't. For the ones that are embedded, it begins with some agreement on the part of the prosecutor and the court to allow the case to proceed through that process rather than through the standard court process. Very often, the court process is suspended to allow for that, and the court hands the case over to the restorative justice process. If it is successful, the person will not be incarcerated. If it is unsuccessful, they will be.
Does the victim, survivor, have to sign off on it?
In most projects, and certainly in Common Justice, they absolutely do. What's striking about that is that 90 percent of the victims who have had the choice between seeing the person who hurt them in Common Justice and seeing them in prison have chosen Common Justice. 90 percent is a crazy number in a world where we have a hard time finding 50 percent agreement on anything these days. It's not just because they're merciful or compassionate or believe in second chances, it's very often pragmatic. They're choosing the thing they believe will satisfy their own needs for safety and justice.
Once the process starts, the person who is responsible for the harm, at Common Justice we call them the responsible party, goes through an intensive preparatory period.
They go through a violence intervention curriculum and they prepare themselves to sit with the people they've hurt and answer for what they've done. We then convene a dialogue, which is typical of restorative justice processes, that brings together the person who committed the harm, the person they hurt, their support people and community members. The victim doesn't have to come if they don't want to. They can be represented by a surrogate. Most choose to come. In that circle we reach agreement about how the responsible person can make things as right as possible. They include things you'd expect, like, go to school, do community service, get a job, pay restitution. They also include things we might not expect, like, the harmed and responsible party meeting each other’s children, because as the victim said, "I want you to meet the children whose father you almost took from them that night with your gun. I believe today in the father you could be to your baby girl and I want to say that to her face."
Those agreements replace the prison sentence that the responsible person would otherwise have served.
You've done about a hundred cases, right?
That's, of course, 70 out of many thousands of cases, presumably, that have passed through the Brooklyn DA's office. How do you scale restorative justice, or is it likely to continue to be a niche strategy?
I think some of how we scale it actually relates back to your first question about the political landscape. Restorative justice is resource intensive. But it is nowhere near as resource intensive as incarceration. The real barrier to expanding restorative justice has to do with our collective willingness to embrace strategies to address violence that can be demonstrated to actually reduce it. It means choosing pragmatism over emotionality. It means choosing safety over rhetoric.
Of course, we're talking a few days after the inauguration of a president who does not seem to be a likely ally in the quest for restorative justice. Are you feeling a sense of despair?
There are a couple of reasons I feel hopeful about this work even in this new era we're entering. One is that the vast majority of criminal justice issues are local. They're state laws that have been violated. They're prosecuted by people who are elected, not just in states, but in their localities. I think we've seen a huge appetite for reform. We've seen elections of progressive prosecutors and progressive sheriffs even in places that voted for Trump.
One of the places we've seen restorative justice really embraced is Texas, which is not what we would expect. I think there is something about the directness of it, the fact the people can address problems without government having a central place in the resolution, but rather the people themselves agreeing to fix it. It's actually compatible with a lot of people and a lot of places who have also ushered in this new era we're entering into.
I think who will and won't be supportive of it is probably far more complex and probably less predictable than we might think.
Okay. I wanted to ask you about the vocabulary, the nomenclature. You make a practice of using "survivors," rather than "victims," and "responsible persons," rather than "offenders" and “harm” rather than “crime.” Why?
First of all, I think the language we use, it conjures an image and it conjures a history. Every time we say a word, part of us hears every other time we've heard it. We can't say the word "offender" and not partly hear all the stories we've ever been told about offenders. We're also, when we say, for example, "harmed party" and "responsible party," part of that is about defining people in relationship to an event and not assuming their whole identity is defined by that event. If I'm the responsible party in one case, I may be the harmed party in another. For most of us, that's true. We've both caused harm and survived harm, every one of us.
When we ask people who have been through harm how they want to identify, most prefer the word "survivor" to "victim." It reflects more of their power and centers the attention on their ability to come through something rather than just that it happened to them.
I want to come back to the politics of this. A recurring theme among reformers is that we won't really overcome the problems of violent crime until we overcome racism and inequality. As you put it in your report, "Change the socio-economic and structural conditions that make violence likely in the first place." That's obviously a massive, transformative task. In the meanwhile, while we wait for the revolution, reformers have a strategic choice to make. Do you go for the low hanging fruit, the three strikes laws and the mandatory minimums for nonviolent crimes, or do you hold out for broader reform that reduces incarceration for violent offenses as well?
I think there are two different ways to think about that. One is to recognize that incarcerating large numbers of people for violence isn't neutral in terms of its effect on violence. Incarceration itself can have a criminogenic effect, both on the individual and community level. The fact is that a person's incarceration can increase their likelihood of committing further violence. I think we have to understand incarceration as a risk factor for violence on a community level and have to address it as such.
In terms of how we make decisions as advocates about whether we address non-violent or violent crime, I absolutely believe that when we can advance reform for non-violent crime we should do so. I believe securing people's freedom and advancing justice and right-sizing the criminal justice system is something we should do at every turn. My concerns when we do that is the framing or rhetoric that expressly contrasts those people whose freedom we are advocating against people who have committed violence. We say, "Some people are monsters, but these ones aren't. Don't put these people in jail with those terrible people who are inherently bad."
It's the conjuring of that image of the imagined, monstrous other that is dangerous and that is counterproductive and that sets back collective efforts to address violence. The efforts to win interim victories that are available are absolutely part of the larger process of ending mass incarceration. There are still hundreds of thousands of people locked up for non-violent and drug- related crimes, whose sentences are too long, where our response was inappropriate and those things should be transformed. We shouldn't do that by comparison. We should fight for those things in their own right.
I'm curious whether in doing this work, you talk to survivors about your own experience as a survivor?
In my engagement with survivors, I'm really careful to make sure that their experience, and not mine, stays at the center of our engagement. I will definitely identify as a survivor with them. In public conversations and in conversation with folks in the criminal justice system, I absolutely do reflect on my experience as a survivor, and I think what that does is it allows other people to do it too. When we go to our inventory of our own experience and ask ourselves what we would have wanted, almost always what we would have wanted is something that would have made us safe and would have really allowed us to believe that others wouldn't experience the harm we experienced.
The fact that the criminal justice system that was available to me when I was hurt couldn't produce that feeling of safety compounded the harm I experienced. I wanted to be able to call somebody who would address it in a way that made me think the fact of my calling had at least prevented someone else from getting hurt. The fact that I couldn't believe that was painful and remains painful.
You obviously, from what you're saying, you clearly did not go through a restorative justice process.
First of all, it feels important to say that while white women are the people we often most imagine as victims of crime, we are very far from the most likely to survive it. Actually, a young man of color is ten times more likely than me to be robbed or assaulted. It means my experience of violence as a white woman is actually really an outlier and not as central as our national narrative.
Of all of the people who've harmed me, none of them were apprehended. Some were known to me. Some were not. Some were in the context of rampant neighborhood violence. Some were in the context of intimate relationships. Not a single one of them went through the criminal justice system. Sometimes it was because of my choice. Sometimes because of the failure of that system to address the harm.
I think most of us survive harm that never makes it to the doors of the criminal justice system. I think one of the things that is promising about developing new strategies to address violence, including community-based restorative justice, is that we not only have a better solution for the crimes that the criminal justice system is already handling, but we have a solution that may be able to reach the crimes that the system is not handling.
We have solutions that can get to people who don't call 9-1-1. That half of victims who don't even pick up the phone in the first place begin to have a access. It means we can actually develop violence intervention strategies that are far broader than what the criminal justice system can ever deliver, because the criminal justice system only deals with people who've been caught.