Community Norms for Punishment and Restitution

0:00Okay. Well, I need to start my presentation today with a disclaimer and an apology. The disclaimer is that the term co-author applied to me is rather generous. I'm really not a primary author on this paper. The two authors are Greg Grome, who's a practicing lawyer, and Gil Gillery, who is a private scholar. Greg Grome was originally supposed to present, So the apology is that I was pressed into service to present this just a couple days ago, only had a couple days to prepare, and I guess I won't be able to threaten you with the full 25-minute presentation. You'll probably have to think of this more as a commercial or a plea to go check out the real thing, the real paper. It's an excellent paper.

0:55So the title is Community Norms for Punishment and Restitution, a Call for Mediation Casebooks. A victim-offender mediation, using circles of support, is the paradigm case for observing community norms of justice, punishment, restitution and proportionality. Modern U.S. juridical Practical practice lacks effective means to assess and apply community norms.

1:48We therefore advocate the assembly and dissemination of mediation casebooks to guide judges, juries and private arbiters in setting terms of punishment and or restitution. Private arbitration has become more common over the last 50 years in the U.S., returning from historical obscurity. Resolution Projects have been launched in virtually all major U.S. cities. Arbitration is likely to keep growing in scope and number of cases. Notably, Guillory, in another paper, proposes a franchisable business model for subscription security which would provide private patrol and investigation of crimes, leading to the widespread use of mediation and or arbitration between victims and offenders to secure restitution for victims. We raise There is a concern that private victim offender arbitration is challenged to reflect community norms.

2:43The best answer, we think, that is to the modern system, lies in the creation of mediation case books. And that's what the paper deals with. So why worry about community norms? Well, there's an inherent problem in subjectivity in adjudication. In many cases, damages that are to be awarded can be very straightforward. In other cases, it's not so clear. And the question arises whether those awarding restitution really have a good grounding in anything other than just their own subjective ideas. The paper cites a case study that was done with two sets of juries and they were presented with the same arguments and in one case the plaintiff was asking for X number of dollars and in the other case the plaintiff was asking for 3X number of dollars and the latter juries consistently would award something like two and a half times what the other jury would award so clearly being influenced by things which don't have much to do with the facts So that's at hand just the arguments that are being made.

4:01So as I mentioned, mediation and community norms is a way of grounding the practice of law, the practice of restitution in practices which are agreed upon voluntarily, notably in mediation. And in collecting the data for mediation cases, So a modern victim-offender mediation looks something like this. There's a director of personnel and a facilitator. In this case, Julie is a victim of a sexual assault from Michael. Both Julie and Michael are able to bring in people for moral support, to help them face one another, to help them be able to air their grievances fully, and there are various officers and specialists who are there to facilitate the whole process.

4:50This paper argues that mediation is the optimal dispute resolution. All issues can be raised. There really aren't set procedures. Many things are negotiable in the process. All sanctions and terms are available. Mediators are often quite surprised at the creativity of the victim and the offender in coming to some kind of solution that works for both of them. It's also empowering for those involved in the process to be able to feel like justice has truly been served. All parties, of course, must agree or else you'll have to move it to an arbiter rather than a mediator. Once again, it draws on and it contributes to the expression of community norms.

5:38This is a diagram that illustrates the process from individual cases all the way to the norms, A large section of the paper deals with Greek and Roman models of mediation. In particular, it cites a scholar, Derek Roebuck, who wrote a couple of books that are kind of source texts in ancient Greek and Roman arbitration. and one passage of particular interest is the shield of Achilles. If you ask me what it is that's there on the shield of Achilles, I can only, it's probably easier for me to tell you what's not on the shield of Achilles.

6:25Hephaestus forges us four Achilles and it features a number of scenes from, really from civilization and many classicists have pointed out how this is contrasted to the war there at Troy. But among the scenes is actually an arbitration that's taking place, and I just want to read a short description of that. This is a description of what's on the shield, that is. Men were crowded together in an assembly. A dispute had been stirred up there, and two men were disputing about the reconciliation payment for a man who had been killed. One was pleading all to be yielded, pointing it out to citizens, the proposed payment, perhaps cattle, but the other refused to accept anything. Both men had put it to a knowing one to reach an end, and men supporters of each side were cheering on both of them, so marshals were restraining the crowd. The elders sat on polished stones in a sacred circle, and one after another took the speaking staff of the shouting marshals in their hand and adjudicated. Two gold talents

7:31to lay in the midst of them, to be given to the one among them who spoke the straightest judgment. So in ancient Greece, and this is something that's detailed in the paper, I can just kind of briefly look at it here, most cases were indeed decided by private mediation. Parties would appoint a koinos, common to both parties, someone known by both parties, and they might also bring arbitrators, people who could present their own case to the koinos, perhaps better than the parties themselves. There was a mediation, and so in the case of acceptance, the agreements were final and there was no appeal. And only relatively few cases, as you can see at the bottom, went to public arbitration. When that would happen, for example, in Athens, many jurors or judges, the Greek word is diecasts, up to over 500 were chosen by law from all citizens. It was considered a civic duty to go serve.

8:25DieCast made the final ruling. Socrates, for example, was tried in one of these situations. But most cases were indeed done by private mediation, even though these were the same people who might also serve on a jury.

8:43As a result of the length, the DieCasts were a direct expression of community norms. So the things that were done every day in common dispute resolutions would be expressed even in a jury. Ancient Romans would often make use of private mediation by a bonus weir that is a good man, again, someone known to both parties in many cases. The goal was settlement, mediation. If that didn't work, if parties couldn't come to an agreement, they'd, much like in the Greek model, would bring private arbitration before an arbiter. The arbiter was under the direction of the city praetor, so it was a little bit more involved with the civil law, the goal being equity in that case.

9:28And then finally, there are a few cases in which a case would make it up to public or private arbitration by EUDEX with the goal being justice. And in ancient Rome, those who were deciding on these laws were often professional jurors, Now, the modern system suffers from a cut-off of the virtuous transmission of community norms to judges and juries. Judges and juries are appointed by the state. In most cases, when a juror sits in his seat, it's the first time he's ever been asked in his life to wrestle with complex legal topics.

10:14No experience of mediation is required, unless...

10:30Just another slide stating a few bullet points.

10:37And so the solution proposed by the paper is because mediations are now currently going on all the time. and all the time. The idea is to take the mediations and consolidate them into some kind of norms and make them usable for judges, arbitrators, juries to be able to apply community norms to try and center judgments and awards, restitutions back in practice of communities. Here's a figure to demonstrate the problem. Both of these black circles are the black circles of justice, I call them. You can't actually see these. I mean, they're here for the purpose of illustrating, but in reality, what people are dealing with, they know this red boundary of legal guidelines. These are the legal boundaries in which I have to rule.

11:26I'd say that's a rather generous position relative to the black circle of justice. And Now on this side we have mediation cases, which are individual dots. Now since all of them are agreed to voluntarily, there is a much better idea of what it is, well, when justice is served through these agreements. So the question that's posed is, well, which job is easier? If all you could see was the red circle and the dots, which would be easier to figure out where justice was? Finally, there's an example casebook entry here, where they want to provide an example of how one might put together from a mediation a casebook and in putting enough of these together, again, it's not only drawing on community norms but contributing to them and can be something that could be applied in the courts.

12:22So once again, I implore you, if you're interested at all, to please seek out the paper and track down Gil Guillory. He'll be happy to answer all the questions that I think you would have. Thank you very much.