DETOUR AHEAD: VICTIM-OFFENDER MEDIATION AS A MANDATORY DEVIATION PROGRAM FOR JUVENILES

Lora Gallagher*
Restorative justice programs are in place around the United States, but are virtually unheard of. Many programs exist simply to supplement probation, or mediate between parties. The intended use of restorative justice, rather was to create a means by which to avoid further harm in the retributive system of justice and work toward making peace and restitution between criminal victims and offenders. In the midst of punishment and retribution are youths getting involved in the criminal system too early in life. Juvenile courts, designed to separate juveniles from adult courts, cater more to youths needs. Juvenile courts, unfortunately, also focus on punishment and humiliation of the offender. Courts ignore juveniles, treating them as if they are unchangeable. The current juvenile justice system is scarce in support for a juveniles want and need to change. Instead of encouraging rehabilitation, the current juvenile justice system fosters violence and recidivism. As a solution to faulty juvenile justice systems, the United States should reform juvenile justice by implementing mandatory initial VictimOffender Mediation for juveniles who commit non-violent crimes. Specifically, implementation of victim-offender mediation at the diversion level approaches victims and offenders quickly after the crime and prevents juveniles from entering the court system. Intervening with mediation at the diversion level allows juveniles to learn from their experience, take responsibility for their actions, and avoid future involvement in crime. Part I of this paper introduces the concept of restorative justice and explains Victim-Offender Mediations origins and uses. Part II provides a brief overview of the current broken juvenile justice system in the United States, evaluating its flaws and assessing opportunities for reform. Part III describes Victim-Offender Mediation and its success in the United States and across the world. Finally, Part IV argues that widespread implementation of mandatory juvenile victim-offender mediation as a pretrial diversionary program remedies the flaws of the juvenile justice system by focusing on the needs of juveniles and aiding in their rehabilitation and reintegration into society.

J.D. Candidate, 2013, University of Mississippi. Member of the University of Mississippi School of Law Moot Court Board.

Electronic copy available at: http://ssrn.com/abstract=2225301

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Table of Contents
INTRODUCTION..3 I. BACKGROUND6 A. Restorative Justice..6 B. What is VOM? ...7 1. What does V-O-M mean?.8 2. How cases reach VOM...10 3. What VOM is not11 II. CURRENT JUVENILE JUSTICE: A FLAWED SYSTEM..11 A. RecidivismYouths are Still Committing Crimes..12 B. Non-Existent Judicial Economy...14 1. Overcrowded courts...14 2. Overcrowded detention centers..15 III. TRANSITION TO VICTIM-OFFENDER MEDIATION18 A. Why juveniles? .18 B. Why now?20 C. Why VOM? ..20 1. VOM Addresses the Needs of the Victim20 2. VOM Addresses the Needs of the Offender22 3. Informality Facilitates Progress23 IV. JUVENILE JUSTICE SYSTEM REFORM...24 A. The proposed reform25 B. Mandatory VOM works...27 C. Safeguards31 D. Too revolutionary? ...32 Conclusion...33

Electronic copy available at: http://ssrn.com/abstract=2225301

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I have always found that mercy bears richer fruits than strict justice. INTRODUCTION Terrorist. Prisoner. Rebel. Nelson Mandela. For nearly 50 years, apartheid dominated South Africa. The general election of 1948 made apartheid an official policy in South Africa.2 Government officials of the National Party enforced racial segregation and white supremacy ruled.3 The government segregated nearly everything: education, medical care, beaches, and residential areas, performing forced removals where necessary.4 Official laws banned even mixed marriages and interracial sexual acts.5 The majority black population gained no governmental representation, eventually resulting in the abolishment of non-white political representation.6 The National Party government even refused citizenship to black individuals.7 Growing internal resistance sparked violence, as well as long arms and trade embargos against South Africa.8 A series of unpopular uprisings and protests instigated a ban against opposition of and imprisoning antiapartheid leaders.9 The black residents of South Africa were prisoners in their own country, imprisoned by their own government. On April 27, 1994, Nelson Mandela became the first democratically elected president of South Africa.10 In a time that should have been full of joy and celebration, Mandela faced his first duty as president: confronting the violent injustices of the past while uniting a country to move forward. 11 Mandela carried the weight of what decision to make in order to deal with the governmental officials who had systematically oppressed, tortured and murdered South Africas black citizens.
Sixteenth President of the United States, serving from March 1861 until his assassination in April 1865. (February 12, 1809-April 15, 1865). 2 See Gallagher, Michael.The Birth and Death of Apartheid. BBC NEWS (Feb. 26, 2013), http://news.bbc.co.uk/2/hi/africa/575204.stm. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 Lodge, Tom (1983). Black Politics in South Africa Since 1945 . New York: Longman. 9 Id. 10 ELIZABETH BECK, et.al. IN THE SHADOW OF DEATH: RESTORATIVE JUSTICE AND DEATH ROW FAMILIES 19 (Oxford University Press 2007). 11 BECK, supra note 10, at 19.
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Abraham Lincoln1

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The country contemplated many options: a Nuremberg trials repeat, blanket amnesty, sheer oversight and ignoring the past.12 Out of this debate came the creation of the Truth and Reconciliation Commission (TRC).13 The TRC laid the groundwork for restorative justice principles forging a new future by facing a violent past.14 Led by Archbishop Desmond Tutu, the TRC set out hear victims stories and seek truth from offenders.15 The TRC opted to use restorative justice, granting amnesty to all offenders who admitted their wrongdoings in a public forum.16 Victims were also encouraged to tell their stories in the public forums.17 As hoped, many who came to the commission experienced relief and healing, simply through the process of telling their story.18 In total, over 20,000 victims told their stories, and over 7,000 perpetrators confessed to crimes.19 After accepting the report, Nelson Mandela stated: Dear fellow South Africans, accept this report as a way, an indispensable way to healing. Let the waters flow from Pretoria today as they flowed from the alter of Ezekiels vision, to cleanse our land, its people, and to bring unity and reconciliation. We have looked the beast in the eye. We will have come to terms with our horrendous past, and it will no longer keep up hostage. We will cast off its shackles, and, holding hands together, black and white will stride into the future, the glorious future God holds out before uswe who are the rainbow people of Godand looking at your past we will commit ourselves: Never again! Nooit weer!20 Despite controversy and severe criticism, Mandela and South Africa found a way to create the united democratic government they sought and move beyond violence and revenge through restorative justice. Nelson Mandela. President. Hero. Inspiration. Restorative Justice
Id. Julian Simcock, Unfinished Business: Reconciling the Apartheid Reparation Litigation with South Africas Truth and Reconciliation Commission , 47 STAN. J. INTL L. 239, 240 (2011). 14 Id. 15 BECK, supra note 10, at 19. 16 Id. 17 Id. 18 Id. 19 Id. 20 BECK, supra note 10, at 19-20.
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Across the globe, many countries followed South Africas example using restorative justice to repair their communities and cities after widespread violence.21 Some countries choose to implement restorative justice in place of their day-to-day criminal justice systems.22 Meanwhile other countries, like the United States, hardly use restorative justice and instead rely on a punishment-based system of justice.23 While restorative justice programs are in place around the U.S., these programs are virtually unheard of.24 Many programs exist simply to supplement probation, or to mediate between parties after the offender receives an incarceration sentence. This is not the intended use of restorative justice. Instead, restorative justice is a means by which to avoid further harm in the retributive system of justice and work toward making peace and restitution between criminal victims and offenders.25 In the midst of punishment and retribution are youths that get involved in the criminal system far too early in life. Juvenile courts, designed to separate juveniles from adult courts that punish, cater more to the youths needs.26 Juvenile courts, unfortunately, also focus on punishment and
Theodore Kasongo Kamwinbi, Between peace and justice: informal mechanisms in the DR Congo in RESTORATIVE JUSTICE AFTER LARGE-SCALE VIOLENT CONFLICTS: KOSOVO, DR CONGO AND THE ISRAELI-P ALESTINIAN CASE 359, 359-68 (Ivo Aersten, et. al, eds., Willan Publg, 2008). DR Congo developed and implemented many informal mechanisms in response to the human tragedy that occurred in North Kivu province, with specific references to the 2004 massacre in Nyabyondo, where militias battled for occupation of the territory. These informal mechanisms include the Barxa Intercommunautaire and the Commission de Pacification et de Concrode, both of which are village-based systems in which councils of elders meet on a regular basis to resolve conflict. 22 Fred W.M. McElrea, Twenty Years of Restorative Justice in New Zealand , available at http://www.tikkun.org/nextgen/twenty-years-of-restorative-justice-in-new-zealand (last visited Nov. 12, 2012). New Zealands entire youth justice system runs on in a restorative manner, mostly through family group conferencing, and has since 1989. 23 Paul Clark, Restorative Justice and ADR: Opportunities and Challenges , 44-NOV ADVOCATE (IDAHO) 13 (2001). 24 Nancy Lucas, Restitution, Rehabilitation, Prevention and Transformation: VictimOffender Mediation for First-Time Non-Violent Youthful Offenders, 29 HOFSTRA L. REV. 1365, 1373 fn. 45 (2001). Some states expressly provide for VOM programs in their juvenile delinquency statutes: Arkansas, Colorado, Delaware, Illinois, Montana, Tennessee, and Wisconsin. 25 See generally CAROLINE G. NICHOLL, COMMUNITY POLICING, COMMUNITY JUSTICE, AND RESTORATIVE JUSTICE: EXPLORING LINKS FOR THE DELIVERY OF A B ALANCE APPROACH TO SAFETY 93 (U.S. Dept of Justice, Office of Cmty. Oriented Policing Services ed., 1999). 26 See generally Cheri Panzer, Reducing Juvenile Recidivism Through Pre-trial Diversion Programs: A Communitys Involvement, 18 J. JUV. L. 186, 187 (1997).
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humiliation for the offender.27 Courts ignore juveniles, and treat them as if they are unchangeable. Even if a juvenile wanted to change, the current juvenile justice system is scarce in support for this want and need. Instead of helping juveniles change and encouraging rehabilitation, the current juvenile justice system fosters violence and recidivism. As a solution to faulty juvenile justice systems, the United States should reform juvenile justice by implementing mandatory initial Victim-Offender Mediation for juveniles who commit non-violent crimes. Specifically, implementation of victim-offender mediation at the diversion level approaches victims and offenders quickly after the crime and prevents juveniles from entering the court system. Intervening with mediation at the diversion level allows juveniles to learn from their experience, take responsibility for their actions, and avoid future involvement in crime. Part I of this paper introduces the concept of restorative justice and explains Victim-Offender Mediations origins and uses. Part II provides a brief overview of the current broken juvenile justice system in the United States, evaluating its flaws and assessing opportunities for reform. Part III describes Victim-Offender Mediation and its success in the United States and across the world. Finally, Part IV argues that widespread implementation of mandatory juvenile victim-offender mediation as a pretrial diversionary program remedies the flaws of the juvenile justice system by focusing on the needs of juveniles and aiding in their rehabilitation and reintegration into society. I. BACKGROUND Man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such method is love. A. Restorative Justice Restorative Justice provides alternatives to the typical retributive justice systems around the world. It is a victim-centered response to crime, giving the individuals most affected by the crimevictims, offenders, families, and community representativesthe opportunity to be directly involved in responding to the crime and harm caused.28
27 See id. at 188 (discussing the emphasis on rehabilitation is fading, and systems are emphasizing punishment for juveniles instead). 28 MARK S. UMBREIT, THE HANDBOOK OF VICTIM OFFENDER MEDIATION: AN

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Restorative justice values emphasize the particular importance of the victim and the offender. Restorative justice seeks to provide more active support and assistance to crime victims, who retributive, punishment-driven justice systems ignore.29 It also seeks to restore the emotional and material losses of victims as much as possible.30 In order to achieve these goals, restorative justice provides a range of opportunities for dialogue and problem solving among those interested parties to a crime.31 Particularly for offenders, restorative justice offers an opportunity for competency development and crucial reintegration into a productive community life.32 At the heart of restorative justice is the theory that crimes violate personal relationships and personal rights.33 Traditional justice systems say an offender violates the rights of the state when a crime is committed.34 While it is true the offender violates the states laws, the offender most importantly violates the victims rights.35 Victim-offender mediation seeks to restore these rights and resulting damaged relationships. B. What is VOM? Victim-Offender Mediation (VOM) started as an experiment in Ontario, Canada, in 1974, in the Elmira case,36 when authorities arrested two youths for vandalism.37 A volunteer probation officer responded to the vandalism call.38 Authorities in the Elmira case thought the youth offenders would benefit therapeutically from a face-to-face meeting with the victims.39
ESSENTIAL GUIDE TO PRACTICE AND RESEARCH xxvii (Jossey-Bass, 2001). 29 See generally id. 30 Id. 31 Id. Includes victims, offenders, families of either party, as well as members of the community. 32 Id. 33 BECK, supra note 10, at 16. 34 Stephanie A. Beauregard, Court-Connected Juvenile Victim-Offender Mediation: An Appealing Alternative for Ohios Juvenile Delinquents, 13 OHIO ST. J. ON DISP. RESOL. 1005, 1009 (1998). 35 Id. at 1009-10. 36 Barbara E. Raye & Ann Warner Roberts, Restorative Processes in HANDBOOK OF RESTORATIVE JUSTICE 212 (Gerry Johnstone & Daniel W. Van Ness, eds., Willan Publg 2007). The Elmira case was the catalyst for VOM, or what Canada and the U.S. originally called Victim-Offender reconciliation programmes. Id. 37 Raye, supra note 36, at 212. Authorities arrested the two youths involved in the Elmira case for vandalism. A probation officer, judge, and volunteer thought a face-to-face mediation best suited the case. Id. 38 Id.
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At the same time, many communities throughout North America,40 England,41 and Norway42 found interest in using mediation tactics similar to those in the Elmira case.43 By the mid-1980s, government-funded pilot schemes were in place across England. 44 VOM is the oldest and most widely used expression of restorative justice throughout the world.45 Typically, many countries model their VOM after the traditional Victim Offender Reconciliation template, which includes four stages. 46 In the first stage, judges refer some cases to VOM within the justice system.47 Next, authorities contact the parties to inform them about the process and ask if they wish to participate.48 If the parties then choose to participate, a mediator conducts the mediation, which results in either the formation of a solution or the return of the case to the justice system if the parties cannot reach an agreement.49 Last, the court can remand the case to a referral source for enforcement of the resolution.50 1. What does V-O-M mean? VOM is a process by which criminal victims meet the perpetrators of those crimes face-to-face, in a safe and structured setting. 51 VOM seeks to hold criminal offenders directly responsible for their actions, while providing important assistance and compensation to the victims.52
UMBREIT, supra note 28, at xliii. The first program concerning VOM occurring in the United States came about in 1978, when the Mennonite Central Committee, probation staff, and a local judge in Elkhart, Indiana, starting accepting cases. By the mid-1990s, a network of approximately 150 victim offender mediation or reconciliation programs existed in the United States. 41 Id. In 1975, Phillip Priestley produced a documentary following the case of a man who had repeatedly stabbed another man in an unprovoked attack in a railway station. The documentary shows Priestley facilitating mediation between the offender and the victim. The documentary is entitled, Just One of Those Things. Id . 42 Id. Neils Christi, a Norwegian criminologist, published an influential journal article, setting forth the idea that the parties to a crime themselves own the conflict, and statedirected criminal prosecution and sentencing represented a theft of that conflict. The journal article is entitled, Conflicts of Property, published in 1977. 43 Id. 44 Raye, supra note 36, at 212. 45 Mark S. Umbreit, et. al, The Impact of Victim-Offender Mediation: Two Decades of Research, 65-DEC FED. PROBATION 29 (2001). 46 Beauregard, supra note 34, at 1013. 47 Id. 48 Id. 49 Id. 50 Id. 51 UMBREIT, supra note 28, at xxxviii.
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A trained mediator conducts VOM.53 The presence of a mediator allows victims to play an active role in the justice process through VOM, by receiving direct information about the crime.54 Victims also have the ability to express their concerns about the full impact of the criminal behavior and an opportunity to negotiate with the offender on a mutually acceptable method of restitution.55 The process allows victims to let the offender know how the crime affected him or her and ask questions the offender can answer.56 VOM typically produces a restitution plan, agreed upon by parties, imposing guidelines and actions on the offender that he must successfully complete.57 Commonly, more than 95% of VOM sessions result in a restitution agreement willingly signed by both parties.58 This restitution plan makes the offender accountable for the loss of damages he or she caused.59 An offenders failure to complete the restitution plan can result in further court-imposed consequences.60 Not only does VOM provide a plan to guide the offenders to restitution, but it also allows offenders to take direct responsibility for their behaviors.61 Offenders are also better able to understand the full impact of what they did.62 By facing victims personally, the offender is able to gain a better understanding of the real human impact of his or her actions.63 Often, VOM allows family members or other support persons to be present throughout the process.64 These individuals also have the opportunity to become involved and express their concerns for the victim, offender, and crime.65 The presence of families educates parents and guardians, as well as places accountability on these individuals to aid in the rehabilitation of the offender and completion of the agreed-upon restitution.66
Lucas, supra note 24, at 1375. See also Beauregard, supra note 34, at 1013. UMBREIT, supra note 28, at xxxviii. 55 Id. 56 Id. 57 See generally UMBREIT, supra note 28, at 54-57. 58 Id. 59 UMBREIT, supra note 28, at xxxviii. 60 Id. at xl. 61 Lucas, supra note 24, at 1368. Lucas discusses the possibility that juveniles accepting accountability may aid them in emerging as a more active and productive citizen in the community. Id. 62 UMBREIT, supra note 28, at xxxviii. 63 Id. at xxxviii-xxxix. 64 Id. at xxxix. 65 Id. 66 See generally MARK. S. UMBREIT, PH.D. & JEAN GREENWOOD, GUIDELINES FOR VICTIM -SENSITIVE VICTIM -OFFENDER MEDIATION: RESTORATIVE JUSTICE THROUGH
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Finally, VOM allows both the victim and offender to gain a greater sense of closure.67 Closure allows both parties a greater ability to move on with their lives, without dwelling on the criminal incident that occurred.68 Moving forward releases the victims from the crime, as well as the offender from their life of crime. 2. How cases reach VOM. Cases typically reach the VOM process through referrals. 69 Cases can reach VOM referral as a diversion from prosecution.70 VOM can also be a condition of probation.71 The court can refer the case after it accepts a formal admission of guilt.72 Sometimes, officials refer cases at both the diversion and post-adjudication levels.73 Officials to VOM refer a majority of cases involved in the juvenile justice system, although some receive referrals from the adult system as well.74 Judges, probation officers, victim advocates, prosecutors, defense attorneys, or police officers can all make case referrals to VOM. 75 While persons connected with the offender or the criminal justice system generally refer cases, victims are able to initiate mediation as well.76 In the U.S., only one-third of cases receive a referral at the diversion level; the remaining two-thirds receive referrals at either the postadjudication or the pre-disposition levels.77 If parties receive a referral to VOM, authorities do not financially penalize victims for wanting to participate in VOM.78 In fact, in none of a wide range of programs offering VOM is there any financial cost to crime victims who choose to participate in the process.79 Most programs do not charge offenders with a financial burden to participate either.80 Overall,
DIALOGUE 13 (Univ. of Minnesota Ctr. for Restorative Justice & Peacemaking ed., 2000). 67 UMBREIT, supra note 28, at xxxix. 68 Id. 69 Id. 70 Id. This assumes the agreement is successfully completed. If the agreement is not successfully completed, the offender can be reinstated into the court systems. 71 Id. It can be a condition of probation if the victim so desires. 72 UMBREIT, supra note 28, at xxxix. 73 Id. 74 Id. 75 Id. 76 Id. 77 UMBREIT, supra note 28, at xxxix. 78 Id. 79 Id. 80 Id. In some programs, offenders can be required to pay a program participation fee to the court to help offset some of the costs of the local VOM program. Id.

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VOM is less financially burdensome for both parties as opposed to traditional justice systems.81 3. What VOM is not. The point of VOM is not to decide the issue of guilt or innocence. The parties are not disputants.82 Generally, one individual has clearly committed a crime and, in doing so, clearly victimized the other party. 83 It is important for the parties to remember this for VOM to be effective. VOM instead seeks to resolve the conflict and find an agreeable restitution.84 Additionally, VOM is not settlement-driven like most forms of mediation. It is dialogue-driven.85 While a mutually agreeable settlement for restitution is an important part, it is not the ultimate goal of the VOM process. VOM seeks to emphasize victim healing, offender accountability, and a restoration of losses.86 Dialogue emphasizes both the emotional and information needs of the victim, both of which are central to the victim healing.87 Further, only through dialogue can the offender realize the consequences of his or her actions. This dialogue fosters the development of victim empathy in the offender, which can lead to less criminal behavior in the future.88

II. CURRENT JUVENILE JUSTICE: A FLAWED SYSTEM There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. Justice Abe Fortas89

The ultimate goal of any juvenile justice system is to ensure that

See generally UMBREIT, supra note 28, at xxxix. UMBREIT, supra note 28, at xl. 83 Id. 84 Id. 85 Id. 86 Id. 87 UMBREIT, supra note 28, at xl. 88 Id. 89 Supreme Court Associate Justice, 1965-1969. Quote from Kent v. United States, 383 U.S. 541, 556 (1966).
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juvenile offenders become responsible, law-abiding adult citizens.90 The institution was to provide for the welfare of children within separate and specialized judicial proceedings.91 The first Juvenile Court was created in Chicago, Illinois, in 1899.92 The courts intended to protect, rehabilitate, and heal children.93 The Juvenile Court would act in the best interest of children, and apply the doctrine of parens patriae, meaning literally, the father of the country.94 The idea of separate juvenile courts spread across the country, and quickly juvenile systems recognized the need for emphasis on rehabilitation in addition to public safety.95 The California Supreme Court explained the intent of the juvenile court exceptionally with the statement, the basic predicate of the Juvenile Court Law is that each juvenile be treated as an individual. The whole concept of our procedure is that special diagnosis and treatment be accorded the psychological and emotional problems of each offender so that he achieves a satisfactory adjustment.96 The underlying theory is that the disposition of juvenile courts is to provide treatment for the causes of the delinquency conduct, not to punish the conduct as in the adult system.97 Despite the juvenile justice systems efforts, problems remain. Juveniles still commit crimes, and those same juveniles will probably commit more crimes in the future.98 Further, judicial economy is suffering and relationships between parties and communities remain broken. A. RecidivismYouths are Still Committing Crimes. Despite the optimism of some proponents of the current juvenile justice system, the system in place is at best mediocre. In 2003, law enforcement agencies reported 2.2 million arrests of person under the age of 18.99 Fifteen percent of male arrests and 20% of female arrests involved individuals under the age of 18.100 Juvenile justice systems are in place to cater to juveniles because
Panzer, supra note 26, at 186. Id. at 187. 92 Kenneth A. Schatz, Juvenile Justice: Reflections on 100 Years of Juvenile Court, 24DEC VT. B.J. & L. DIG. 50 (1998). 93 Id. 94 Id. 95 Id. 96 In re William M., 89 Cal. Rptr. 33, 44 (1970). 97 Panzer, supra note 26, at 187. 98 See id. at 192. 99 HOWARD SNYDER & MELISSA SICKMUND, JUVENILE OFFENDERS AND VICTIMS: 2006 NATIONAL REPORT, 125 (U.S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention 2006) Available at www.ojp.usdoj.gov/ojjdp.
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juveniles are a unique demographic. Adults and juveniles differ in characteristics and development, and therefore, each demand distinct treatments.101 Legislatures put juvenile justice systems in place in order to prevent crimes, rehabilitate offenders, and discourage future criminal behavior.102 Despite the legislatures intent, 103 current juvenile justice systems are failing in reaching those goals. Federal legislature even took note that current programs and the traditional approaches are not effective in curbing juvenile crime and recidivism.104 No uniform national recidivism rates are available in the U.S. because varying juvenile criminal systems across the states skew the rates.105 States, however, can provide reliable estimates of recidivism rates for their particular area.106 Further, inclusion of only the offending that comes to the attention of the system underestimates recidivism we do have. 107 This means many youths are re-offending and never getting caught.108 States across the country show small pieces of the occurring recidivism. In a sample study of recidivism rates by the Virginia Department of Juvenile Justice, three states showed a re-arrest rate of 55% within just 12 months of release from incarceration.109 Three different states reported a 25 % recidivism rate for re-incarceration or re-confinement after at least one previous incarceration.110 Overall, nearly six in ten juveniles returned to court before the time they turned 18.111 In fact, when juveniles emerge from jail, they are less likely to integrate
See generally Schatz, supra note 92, at 50 (discussing the differences between adults and juveniles, and the need for the court to consider those differences when addressing legal matters involving children). 102 Id. (stating the court was designed to protect children and aid in rehabilitation and healing). 103 See 42 U.S.C.A. 5602(b)(2) (West 1997). Congress policy was to promote the development of effective programs to prevent delinquency, to divert juveniles from the traditional justice system and to provide critically needed alternatives to institutionalization[[and] to encourage parental involvement in treatment and alternative disposition programs. Id. 104 See Panzer, supra note 26, at 194 (citing 142 Cong. Rec. S10192-02 (daily ed., Sept. 10, 1996) (statement of Sen. Domenici)). 105 SNYDER, supra note 99, at 234. 106 Id. 107 Id. 108 Id. 109 Id. The Virginia Department of Juvenile Justice contacted other states to collect information on juvenile recidivism rates and studies across the country. The research shown reflects only those studies in 27 states who responded with data. Id. 110 SNYDER, supra note 99, at 234. This percentage reflects the number of juveniles, incarcerated at least once before, who committed another crime within 12 months of release from incarceration.
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back into society and are more likely to commit crimes.112 A majority of adult recidivists began as juvenile offenders.113 As criminal juveniles grow up, they tend to commit more serious and often violent crimes, becoming part of the revolving door syndrome.114 The biggest problem with todays juvenile justice system lies in the available recidivism rates of the offenders.115 Todays systems fail in remedying increasing recidivism among juvenile offenders.116 Not only are youths committing crimes, but also they are likely to commit another crime after release from detention centers, and possibly experience other maladjustments as an adult.117 Recidivism should be the focus of the justice system. Public policy demands that implementation of the theories of justice rehabilitate offenders, especially those who are young. B. Non-existent Judicial Economy 1. Overcrowded courts The volume of delinquency cases handled by juvenile courts rose 41% between 1985 and 2002.118 The sheer volume of this increase overwhelmed the dockets. In 2002, courts with juvenile jurisdiction handled approximately 1.6 million delinquency offense cases. 119 This means juvenile courts around the country handled over 4,400 cases per day. 120 These changes in the delinquency caseload strained both the courts resources and programs. 121 Not only did the system as courts to respond to more cases, but also demanded these courts handle more person offense and drug cases.122 In its current state, the juvenile justice system allows courts to consider

Lucas, supra note 24, at 1366. See also, Kristin Choo, Minor Hardships: Jailing Youths as Adults is Gaining Ground And So are Its Critics, ABA J. 20 (2000). 113 Panzer, supra note 26, at 191. 114 Id. at 191-92. 115 SNYDER, supra note 99, at 234. Recidivism is the repetition of criminal behavior. 116 Beauregard, supra note 34, at 1005. See also, William R. Nugent & Jeffrey B. Paddock, The Effect of Victim-Offender Mediation on Severity of Reoffense, 12 MEDIATION Q. 353, 354-55 (1005). 117 See Nugent, supra note 106, at 354-55. Nugent noted that studies have shown juvenile delinquency is an indicator of adult criminal behavior, personality disorders, alcoholism, poor occupational performance and other like maladjustments. Id. 118 See Panzer, supra note 26, at 157. 119 SNYDER, supra note 99, at 157. 120 Id. 121 Id. 122 Id.

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informal case handling123 if they believe formal court intervention is not necessary to achieve accountability and rehabilitation.124 This is what restorative justice aims for: offenders accepting accountability and experiencing rehabilitation without going to court. If the court decides to handle the matter informally, the offender agrees to comply with one or more sanctions.125 Courts, however, are not taking advantage of the benefits of informal case handling. Between 1985 and 2002, formal processing through juvenile courts increased by 13%.126 Rather than sending juvenile cases through informal processes, more cases go to court. Further, cases in general offense categories are most likely result in formal handling,127 even though the majority of these offense categories are non-violent. The choice by the courts to use formal case handling more than informal case handling creates the overcrowded dockets. Instead of using VOM and informal case handling, juvenile courts petitioned nearly six in every ten delinquency cases for formal handling, and adjudicated the youth delinquent in seven of ten of those cases.128 By reducing these numbers and sending cases through informal case handling process, like VOM, juvenile courts could lighten their caseload and function more efficiently.129 Experts anticipate pre-trial diversionary programs will conserve the courts time and resources for more serious crimes.130 2. Overcrowded detention centers Not only are juvenile justice courts overcrowded, but the detention centers holding these adjudicated delinquents are overcrowded as well.131 The number of incarcerated youths is increasing, resulting in over-crowded
See Panzer, supra note 26, at 189. Informal case disposition includes pre-trial diversionary programs, like VOM. Id. 124 SNYDER, supra note 99, at 171. 125 Id. 126 Id. 127 Id. The four general offense categories include property, person, public order, and drug offenses. 128 Id. at 172. From 1985 to 2002, the number of cases in which the youth was adjudicated delinquent rose 85 percent. Id. at 173. 129 See generally Thomas E. Ulrich, Pretrial Diversion in the Federal Court System, 66-DEC FED. PROBATION 30 (2002) (citing Carol Cabell, Pretrial Diversion Provides Benefits, Saves Time and Money, FEDERAL COURT MANAGEMENT REPORT, 1 & 3 (May 2000). 130 Id. 131 See Correctional Facilities, Office of Juvenile Justice and Delinquency Prevention. Available at http://www.ojjdp.gov/mpg/progTypesCorrectional.aspx (last visited Nov. 14, 2012 11:41 a.m.).
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and dangerously understaffed jails.132 Overcrowding reduces the quality of the facility, as well as impairs the experience and rehabilitation of the juvenile residing in the detention facility.133 Increasing numbers in large, typically overcrowded facilities diminish both treatment opportunities and effectiveness of services.134 Studies show that very high recidivism rates accompany overcrowded juvenile centers.135 Facilities are exceeding their bed capacity. 136 In some detention facilities, overcrowding forces juvenile residents to sleep on makeshift beds.137 The 2008 Juvenile Residential Facility Census138 showed 25% of facilities reported the number of residents they held in 2008 put them at or over the capacity of their standard beds, or they relied on makeshift beds.139 Overall, 3% of facilities reported being over capacity.140 About 78 facilities reported having occupied makeshift beds, averaging seven per facility.141 In one instance, a juvenile detention facility had 195 residents with only 95 standard beds; 100 residents lacked standard beds.142 Presumably, courts send juveniles to detention centers to be punished, yet rehabilitated.143 Rehabilitation through detention facilities seems to be a far stretch if the facilities are unable to provide beds for the youths to sleep on. Detention centers are typically unfit to care for juveniles who may have exceptional needs, such as substance abuse problems or mental disorders.144
Lucas, supra note 24, at 1366. Id. 134 MARK W. LIPSEY, ET. AL., IMPROVING THE EFFECTIVENESS OF JUVENILE JUSTICE PROGRAMS: A NEW PERSPECTIVE ON EVIDENCE-BASED PRACTICE 7, 14 (Georgetown Univ. Ctr. for Juvenile Justice Reform 2010), available at http://cjjr.georgetown.edu/pdfs/ebp/ebppaper.pdf. 135 Id. 136 Sarah Hockenberry, et. al., Juvenile Residential Facility Census, 2008: Selected Findings in JUVENILE OFFENDERS AND VICTIMS: NATIONAL REPORT SERIES BULLETIN 6 (U.S. Dept of Justice, Office of Juvenile Justice & Delinquency Prevention 2011), available at www.ojjdp.gov. 137 Id. 138 Id. at 2. JRFC is designed to routinely collect data on how facilities operate and provide services. The JRFC asks detailed questions on facility security, capacity, crowding, deaths, ownership, and operation. JRFC captures data on juveniles only, not adult prisons or jails. JRFC includes most, but not all, facilities that hold juvenile offenders. The facilities may also hold adults or non-offenders, but data were only included if the facility held at least one juvenile offender on the census date. 139 Hockenberry, supra note 136, at 6. 140 Id. 141 Id. at 7. 142 Id. 143 LIPSEY, supra note 134, at 7. 144 RICHARD A. MENDEL, NO P LACE FOR KIDS: THE CASE FOR REDUCING JUVENILE 7, 25 (Anne E. Casey Found. 2011).
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Although authorities do not mean for detention to be pleasant, facilities must maintain respectable standards in order to facilitate a rehabilitation and education of detained youths.145 These centers fail in being equipped to care for different types of juveniles, some who need more care than others.146 Another likely alternative localities use for a lack of beds is placing juveniles in adult detention centers.147 Despite the creation of specific centers to keep youths and adults separate, authorities are placing youths in adult centers.148 Youths held in adult facilities are nearly eight times more likely to commit suicide.149 Juveniles placed in adult facilities are also twice as likely to suffer physical assault and five times more likely to suffer sexual assault at the hands of other, adult inmates.150 Detention centers and facilities also hinder the development of juveniles. The operation of some of these facilities works against the fostering of personal relationships and positive outlooks on life. In an overall census of juvenile facilities, 38% of facilities said they keep juveniles locked up in their sleeping rooms. 151 Forty-five percent of facilities reported locking youths in isolation for four hours or more.152 One goal of the retributive system is supposed to be fostering reintegration of the youth into the community. 153 Isolation does not serve the goal of the justice system or the personal interests of the juvenile.154 The current juvenile justice system fails in many respects. Despite overcrowded courts, judges and authorities refuse to take advantage of the informal processing option for juveniles minor offenses.155 Overcrowded detention centers hurt, rather than help, a juveniles possibility of rehabilitation.156 Further, recidivism rates are rising, as juvenile offenders
Id. at 24-25. Id. at 25. 147 See generally Lucas, supra note 24, at 1366. See also, Choo, supra note 108, at 20. 148 Lucas, supra note 24, at 1366. 149 Choo, supra note 108, at 20. 150 Id. (quoting Human Rights Watch Attorney, Michael Bocherek). 151 Hockenberry, supra note 136, at 4. 152 Id. at 8. 153 Mara Shiff, Satisfying the Needs and Interests of Stakeholders in HANDBOOK OF RESTORATIVE JUSTICE 228, 233 (Gerry Johnstone & Daniel W. Van Ness, eds., Willan Publg 2007). Reintegration is a goal for both the victim and the offender. Dialogue-driven mediation places emphasis on relationships, rather than punishments, so victims and offenders both can regain (or even gain for the first time) their sense of community identity. Id. 154 MENDEL, supra note , at 25. In successful lawsuits against correctional facilities, 46 of 57 of the suits alleged excessive reliance on isolation. Id. 155 See Part A, supra. 156 See Part B, supra.
146 145

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continue to commit crimes continuously as a youth, and on into adulthood.157 Policy demands that the current juvenile system transition to a system that cares for the needs of all parties involved in a crime.158 That system is VOM. III. TRANSITION TO VICTIM-OFFENDER MEDIATION Forgiveness is the sweetest revenge. Isaac Friedmann

Despite the flaws, many Americans still believe in a traditional juvenile justice system that emphasizes prevention, treatment, and rehabilitation.159 These same Americans reject the retributive thrust of a punishment-centered justice system for juveniles.160 These two ideas do not go hand in hand. Congressional findings evidence a statement by Senator Domenici, expressing the legislatures contemplation of a redesigned juvenile system.161 The statement explains that a redesigned juvenile correctionshould be based on four principles of accountability for offenders and their families, restitution for the victims, community-based prevention and community involvement.162 The logical answer for satisfying legislative intent and the majority of Americans is mandatory VOM for juveniles. A. Why juveniles? The underling theory of juvenile justice systems is to provide treatment for causes of juvenile delinquency conduct, not to punish as in the adult system.163 The basic predicate of juvenile court is that the court treats each juvenile as an individual.164 The balance between acts and consequences is particularly important
See Part C, supra. See Part III, infra. 159 Lucas, supra note 24, at 1368. 160 Id. 161 See Panzer, supra note 26, at 194 (citing 142 Cong. Rec. S10192-02 (daily ed., Sept. 10, 1996) (statement of Sen. Domenici)). 162 Id. 163 Panzer, supra note 26, at 187. 164 In re William M., supra note 96, at 44. The court discussed that the whole concept of a juvenile justice system was that special diagnosis and treatment be given to each offenders psychological and emotional problems, so each can achieve satisfactory adjustment. Id.
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when dealing with juveniles.165 While adults may not be likely to change their ideologies through penalties, juveniles are inherently less rigid in their belief systems.166 The Supreme Court of the United States held that children are constitutionally different from adults for the purposes of sentencing, because juveniles have diminished capacity and greater prospects for reform.167 Juveniles, then, are less deserving of the most severe punishments.168 Juveniles lack of maturity and their underdeveloped sense of responsibility can lead to recklessness, impulsivity, and headless risktaking.169 Families and peers more easily influence juveniles by negativity and outside pressures.170 Juveniles usually have very limited control over their environment and placement, and lack the ability to take themselves out of crime-producing settings.171 Because a childs character is not as well-formed as an adults, his traits are less-fixed, and his actions are less likely to be evidence of irretrievabl[e] deprav[ity].172 Juveniles are inherently easier to fix.173 Experts see children and adolescents as more malleable by treatment or reeducation.174 In fact, separate laws cater to juveniles, because juveniles offending and crimes may be an indication of adverse socialization.175 Because of a juveniles inherent nature, experts believe mediation or therapy can correct socialization problems.176 For these reasons, juveniles are different. The creation of separate court systems for juveniles conceded this point. Restorative justice and VOM further the goal of treating juveniles appropriatelydifferently from adults. B. Why now? Restorative justice policies and practices emerged in direct response to
Patrick Glen Drake, Victim-Offender Mediation in Texas: When "Eye for Eye" Becomes "Eye to Eye" fn. 2, 47 S. TEX. L. REV. 647, 670-71 (2006). 166 Id. 167 Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012). 168 Id. 169 Id. (citing Roper v. Simmons, 543 U.S. , 569). See also Graham v. Florida, 130 S. Ct. 2011 (2009). 170 Id. 171 Id. 172 Miller, supra note 167, at 570. 173 See generally Lode Walgrave, Restoration in Youth Justice, 31 CRIME & JUST. 543, 545 (2004). 174 Id.
175 176 165

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unresolved issues facing the juvenile and criminal justice systems through the Western world.177 At a time when emphasis on retribution is increasing, contradictory impulses between punishment and rehabilitation persist among correctional policymakers and practitioners.178 For instance, a lack of clarity regarding the basic purpose of sentencing creates such a contradiction.179 People interpret sentencings basic purpose in many ways: as a way to rehabilitate and change an offenders behavior, as a means of deterrence so others do not commit the same crime, or as a way to incapacitate an offender and remove them from circulation in society for an allotted period.180 These very different interpretations of the current retribution justice system lead to confusion about what the courts are trying to achieve.181 The justice systems need clarity, which mandatory victim-offender mediation offers. The time has come for progression to a new system, a deviation from traditional juvenile courts and into rehabilitation. C. Why VOM? In many ways, VOM is the answer the juvenile justice system has been looking for. VOM offers practical remedies to the detrimentally flawed system. By repairing relationships and providing opportunity for dialogue, VOM addresses the needs of all parties involved in the crime. Further, the informality of the process facilities progress with offenders and aids in completion of restitution and rehabilitation. 1. VOM Addresses the Needs of the Victim. Victims of crimes feel increasingly frustrated and alienated by our current system of justice.182 Even though the system exists precisely because criminal behavior violates individual citizens, those victims have virtually no legal standing in America courts.183 Criminal acts are defined as a crime against the state and state interests drive the process of finding justice.184 In many instances, victims of crimes feel victimized twice: once by the offender, and then again by the criminal justice system that their tax dollars
177 178

UMBREIT, supra note 28, at xxvi. Id. 179 Id. 180 Id. 181 Id. 182 UMBREIT, supra note 28, at xxvi.
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pay for.185 Their encounter with the justice system leads to increasing frustration and anger as they realize the system ignores them and often, does not provide them with relevant information about the court process or final disposition of the case.186 In the traditional justice system, victims are in many ways taken out of the trial and marginalized.187 While victims are often times called as witnesses in a trial, many watch from afar, serving a passive role.188 In practice, VOM allows victims to voice their feelings, emotions, anger, and regrets.189 With this voice, victims feel important and included in the process.190 Participation in the justice system is crucial for a victims concept of satisfaction and fairness.191 Further, victims may feel isolated and alone following a crime.192 Rarely do criminal justice professionals take time to listen to the fears and concerns of the victims, and then seek their input and invite their participation into the trial process.193 VOM seeks to restore relationships, and surround the victim with parties that are deeply interested in repairing their broken and victimized state.194 VOM does this, helping victims feel less fear and anxiety than they experienced before the VOM program.195 Critics hypothesize that victims will not want to participate in restorative justice and VOM because they would prefer punishment and fear contact with offenders.196 Research proves those critics wrong. In the Canberra experiments, only 12% of victims disagree with the statement, The government should use conferences as an alternative to court more often,197 This leaves a convincing majority, 88% of victims, who agree
Id. Id. 187 Shiff, supra note 153, at 232. 188 Id. 189 See NICHOLL, supra note 25, at 118. 190 Id. 191 Matthew Dickman, Should Crime Pay? A Critical Assessment of the Mandatory Victims Restitution Act of 1996 , 97 CAL. L. REV. 1687, 1716 (2009). 192 Id. at 232. 193 UMBREIT, supra note 28, at xxvi-xxvii. 194 Shiff, supra note 153, at 232. 195 Lucas, supra note 24, at 1383. 196 See generally Andrew Ashworth, Some Doubts about Restorative Justice, 4 CRIM. L.F. 277 (1993). 197 JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 46 (Oxford Univ. Press 2002). Additionally, only 3% of offenders and 2% of community representatives at conferences disagreed with that statement. Id. See also HEATHER STRANG, PH. D., EXPERIMENTS IN RESTORATIVE POLICING: FINAL REPORT ON THE CANBERRA REINTEGRATIVE SHAMING EXPERIMENTS (RISE) 3 (2011), available at http://www.aic.gov.au/en/criminal_justice_system/rjustice/rise/~/media/ aic/rjustice/rise/final/rise_final_chapters_1_2.pdf. The Canberra experiences aimed to
186 185

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with the statement.198 Numbers alone show that victims emerge from the VOM satisfied with the process and a perceived fair outcome.199 2. VOM Addresses the Needs of the Offender. Traditional court systems focus on the wants and needs of the state.200 A party that gets almost no attention or consideration during a trial is the offender.201 Neither the victim nor the offender has an opportunity to tell their story.202 Particularly with juveniles, offenders also have needs; these needs, if considered, can aid in rehabilitation of the offender. One of the most important steps in preventing future crime is creating accountability in the offender.203 Accountability means the offender takes responsibility for actions.204 VOM aids the offender in accountability.205 At the onset of VOM, it is important for the offender to admit that they were wrong in their actions.206 Without this admission of guilt, the process cannot make progress on behalf of the victim.207 The victim needs to understand they are not responsible for the crime, and it was not their responsibility to prevent the crime.208 The traditional court system often encourages offenders to deny responsibility for their actions, or find a scapegoat to blame instead.209 Allowing the offender to take accountability for his actions is one of the biggest strengths of restorative justice and VOM.210 Admitting guilt and taking responsibility are positive steps in the direction of repairing relationships.211 VOM offers an environment where shame and humiliation do not follow an admission of guilt.212
compare the effects of standard court proceedings with the effects of diversionary conference for different offense categories (3 of 4 that concerned juvenile offenses). The experiments collected data between 1995 and 2000. Id. 198 BRAITHWAITE, supra note 197, at 46. 199 Id. 200 UMBREIT, supra note 28, at xxvi. 201 Umbreit, et. al., supra note 45, at 2. 202 Id. 203 Shiff, supra note 153, at 231. 204 See generally id. 205 Lucas, supra note 24, at 1371. 206 See Christopher Bennett, Satisfying the Needs of Interests of Victims in HANDBOOK OF RESTORATIVE JUSTICE 247, 254 (Gerry Johnstone & Daniel W. Van Ness, eds., Willan Publg 2007). 207 See generally id. 208 See generally Shiff, supra note 153, at 231. 209 BECK, supra note 10, at 14. 210 Lucas, supra note 24, at 1371. 211 See generally Bennett, supra note 206, at 254-55. 212 See generally Kristin Henning, 97 CAL. L. REV. 1107, 1167 (2009).

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Additionally, VOM allows the offender to sit face-to-face with the victim and experience first-hand the consequences of his or her actions.213 This process makes the crime and its consequences real.214 Court proceedings lack the substantial value that a real victim can bring to the situation. In this less formal, more personal setting, an offender can hear the victims feelings about the incident, how the crime affected his life, and what the victim feels would be adequate restitution or punishment.215 Offenders also experience a need for reform and reconciliation.216 VOM allows the offender, and not just the victim, to explain his or her feelings, emotions, and possible justifications for the actions taken. 217 Under these circumstances, the offender has a chance to recognize the wrong and express remorse.218 Some research suggests an apology from an offender to a victim produces higher satisfaction than restitution alone.219 The offender can attempt to right that wrong through restitution or an agreed upon means of punishment or service. 220 This also allows offenders to earn their way back into the community, through a sort of earned redemption process.221 Incentivizing an offender to earn the respect and acceptance of the victim and community leads to increased completion of the reparative orders and has been associated with reductions in recidivism.222 3. Informality Facilitates Progress Traditional court proceedings are very formal. In contrast, VOM attempts to keep proceedings informal, working to keep parties at ease and feel comfortable with the process.223 This informality fosters free exchange of information, which encourages discussion between the parties and often times allows the parties to be more honest and speak their minds.224 Out of this communication comes true restoration of relationships and satisfaction with the chosen restitution.225 Further, informality allows the parties
See generally Lucas, supra note 24, at 1371-72. Shiff, supra note 153, at 231. 215 See generally NICHOLL, supra note 25, at 115. 216 Id. at 120. 217 Id. 218 Id. at 104. 219 Shiff, supra note 153, at 233. 220 Id. 221 Id. at 231. 222 Id. 223 See generally Beauregard, supra note 34, at 1018. 224 Id. at 1018. 225 MARK. S. UMBREIT, V ICTIM MEETS OFFENDER: THE IMPACT OF RESTORATIVE JUSTICE AND MEDIATION 154, 155-56 (Criminal Justice Press 1994). Crime victims who
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intuition and creativity to take control, developing innovative solutions to the conflict.226 Discussion and a free exchange of ideas are not possible in traditional court proceedings.227 The formalities of the justice system prevent parties from explaining their feelings, exchanging information about the surrounding circumstances, and expressing what it is he or she truly wants from the justice process.228 The informality of VOM facilitates an environment where both victims and offenders feel involved, less anxious, and important.229 By addressing the needs of all parties involved in a less formal setting than traditional courts, VOM advances the fundamentals of juvenile justice.230 IV. JUVENILE JUSTICE SYSTEM REFORM Revenge is a kind of wild justice, which the more a mans nature runs to, the more ought law to weed it out. Francis Bacon231

Emphasis on rehabilitation rather than punishment within the system is rapidly losing its social popularity because of the rise of violent juvenile offenses.232 Many jurisdictions responded by lowering the age, some as young as 11,233 for a waiver from juvenile courts to the adult system.234 Fourteen now seems to be the operative age instead of 18.235 Instead of finding a process that helps juveniles, jurisdictions are making it easier to try juveniles as adults.236 In addition, courts are applying more punitive

participated in VOM expressed a high degree of satisfaction with the process. Id. 226 Id. 227 See generally NICHOLL, supra note 25, at 102-04. 228 Id. 229 See Part III, infra. 230 Id. 231 English author, courtier, and philosopher (1561-1626). 232 Panzer, supra note 26, at 188. 233 Id. Vermont has lowered the age of waiver to 11. In North Carolina and Illinois, the age cutoff is 13. In California, the age is as low as 14 for juveniles who commit certain serious criminal act. Further, In New York, anyone older than seven can possibly be tried as an adult. See Kenneth Freed, Youth-Crime Wave Stirs Shift in Policy Juvenile Crime, Omaha World-Herald June 9, 1996, at 1A. 234 Panzer, supra note 26, at 188. Waiver is the process of transferring a juvenile from the juvenile system to the adult system. 235 Freed, supra note 233, at 1A.
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approaches, like confinement, as punishments.237 Both of these responses by courts are in direct conflict with the public policy reasons established by juvenile courts in the first place.238 A. The proposed reform Juvenile justice systems should reform and implement victim-offender mediation at the diversion level for juveniles who commit non-violent crimes. With the passage of a statute for each state or a federally mandated implementation, juvenile justice systems can transition from their current systems to a more mediation and rehabilitation-focused model. The first main intervention point for restorative justice approaches within the criminal justice process is the pre-prosecution phase.239 At this point, restorative justice is able to serve as an alternative to prosecution, rather than merely a supplement to the court system. 240 By replacing the traditional process with VOM instead of supplementing it, the juvenile justice system allows youths to avoid the consequences of prosecution. The diversion phase occurs once authorities suspect and begin investigation into the juvenile for the crime, but before a formal charge and litigation begin.241 Implementation of VOM at the diversion level also prevents adjudication of the juvenile for the time being. While other times and options are available, VOM should occur at the diversion phase of a juveniles criminal process. Numerous pre-trial diversionary programs are in place in the United States.242 In a 2000 national survey of VOM programs, 34% of programs indicated their primary referral stage was at the diversion level. 243 These pre-trial diversionary programs are effective and potentially low cost alternatives to the traditional juvenile justice system in reducing juvenile recidivism.244 The goal of diversionary programs is to remove as many juveniles as possible from the revolving door syndrome, in turn
Panzer, supra note 26, at 188. See also Kelly Keimig Elsea, The Juvenile Crime Debate: Rehabilitation, Punishment, or Prevention , 5 FALL KAN. J.L. & PUB. POLY 135 (1996) (citing provisions of Violent Crime Control and Law Enforcement Act of 1994). 238 See supra Part II. 239 James Dignan, Juvenile Justice, criminal courts and restorative justice in HANDBOOK OF RESTORATIVE JUSTICE 212 (Gerry Johnstone and Daniel W. Van Ness, eds., Willan Publishing 2007). This can either occur immediately after the arrest, or after an authorities charge the offender. Id. 240 Id. at 271. 241 See generally Panzer, supra note 26, at 189. 242 Id. at 186. 243 UMBREIT, PH.D., supra note 66, at 2.
244 237

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reducing recidivism.245 In fact, mediation most commonly occurs as a diversion program when systems implement these programs.246 Implementation at the diversion phase prevents all of that from happening. The founding principles of restorative justice and VOM are still intact and able to improve both the victim and offenders experiences. Allowing a juvenile to reach adjudication negates many of VOMs goals and principles. The juvenile has already been through a trial process and experienced the humiliation and neglect that comes with it.247 Further, victims have already been through that same process, serving in a passive and lonely capacity.248 The flaws of the juvenile justice system have already taken hold of many of the parties, and there may be no turning back. If systems implement VOM similarly to current informal case handling, many accountability factors remain intact. A juvenile cannot simply enter VOM, apologize, and forget about the process. Nearly every VOM program results in an agreed-upon restitution plan, which the offender must complete in order for the case to be dismissed at the diversion phase.249 If at any time, the juvenile offender faults the agreement, or does not ultimately complete the restitution, mediators and officials should have discretion to send the case to juvenile courts.250 North Carolinas state statute concerning proceedings involving children alleged to be delinquent or undisciplined serves as a model for other states, or a federal approach to diversionary intervention.251 Section 155 of North Carolinas Index for Infants and Minors sets out guidelines for discretionary options a juvenile court counselor may make in order to divert the juvenile from court.252 North Carolinas law allows counselors to divert the juvenile to numerous programs, including victim-offender mediation.253 As a part of the diversionary program, counselors may require that participants and their parents or legal guardians sign a contract explaining consent and agreeing to certain terms and conditions.254 At any time during
Id. MARK. S. UMBREIT, ET. AL. NATIONAL SURVEY OF VICTIM-OFFENDER MEDIATION PROGRAMS IN THE UNITED STATES 8-9 (Univ. of Minnesota Ctr. for Restorative Justice & Peacemaking ed., 2000). 247 See generally Henning, supra note 212, at 1150. 248 Id. 249 Panzer, supra note 26, at 195. 250 Id. 251 See 17A N.C. INDEX 4TH INFANTS OR MINORS 155 (4th ed. 2012). 252 Id. 253 Id. 254 Id. North Carolinas statute sets out guidelines for this contract, including but not limited to the following: the juvenile and his/her parent or guardian agree to take any necessary actions required by the counselor, describes the role of the counselor in relation
246 245

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the term of the contract, if the counselor determines the juvenile has failed to comply substantially with that contract, he or she may file the complaint as a petition to the court.255 At the end of the time period, not exceeding six months after the date of the contract, the counselor shall close the juveniles file in regards to the diverted matter if the juvenile has substantially complied.256 While specifics may vary state-by-state, North Carolinas statute serves as an example of how diversionary programs work as mandatory programs. A statute similar to this, automatically diverting qualifying cases, would result in a similar, but better, system than optional programs do today. B. Mandatory VOM works Although scarce, some communities in the United States have working programs for mediation and restorative justice for juveniles. Specifically, schools and communities have implemented programs catering to juveniles. The following examples illustrate implementation already occurring in the U.S. The Restorative Justice Program is an active program at North Side High School in Denver, Colorado.257 The program effectively mediates disagreements and meetings between students for fights.258 The program uses the principles of restorative justice, particularly mediation, to bring about resolutions to the disruptions in the educational system.259 Program participants in Denver experienced an 80% satisfaction rate.260 Additionally, 75% of participants felt the opposite party completed the agreements and solutions mediated.261 The school reported personal and public apologies, repairment of personal relationships, mutual respect, and community service, among other individual results.262 School-wide results included evidence of reduced school suspensions, less use of law enforcement, and fewer expulsions; results also showed an increased
to the other parties, specifies the length of the contract (not to exceed six months), and clauses stating the parties understand the consequences of both completing the program, or violating its terms and conditions. After the parties sign the contract, the counselor must provide all parties with a copy of the contract, and notify any related agencies or resources from which the juvenile may be requesting services during this time. Id. 255 155, supra note 251. 256 Id. 257 Thalia N. C. Gonzalez & Benjamin Cairns, Moving Beyond Exclusion in JUSTICE FOR K IDS 242 (Nancy E. Dowd, ed., New York Univ. Press 2011). 258 Id. 259 Id. 260 Id. at 252. 261 Id. 262 Gonzales, supra note 257, at 252.

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number of self-referrals to the schools restorative justice system.263 Many of the U.S. programs function successfully. In some of those communities using VOM for juveniles, the restorative program diverts the juveniles from the arrest and court process. For instance, the Civil Citation program in Miami, Florida, diverts juveniles by a referral system. 264 An assessment of the youths needs determines his referral to the system.265 The program works to divert juveniles from the arrest process because of the individual and family stress associated with arrest, as well as the labeling the juveniles receive.266 The Civil Citation program resulted in a 20% reduction of juvenile arrests in Miami-Dade County between 2007 and 2008.267 The results also showed a recidivism rate as low as 3% for the youths who completed the program.268 The average cost saving for those participating in the program was $5,000 per child, as opposed to those who authorities arrested and adjudicated.269 This programs success is just one of the many examples of diversionary restorative programs working to aid juveniles in addressing and solving the actual causes of delinquency.270 The program avoids future negativity for not only the juvenile, but also the community as a whole. 271 VOM has also worked in cases dealing with juveniles who committed more serious crimes. In Anchorage, Alaska, a study focused on seven juvenile cases using VOM that included crimes of murder, attempted murder, and burglary.272 Both victims and offenders reported high levels of satisfaction with VOM.273 Participants mentioned specific benefits they received from the process, including rehabilitation aid, the ability to have questions about the crime answered, personalization of the opposite party, opportunities for apology and forgiveness, a reduction in fear and anger,

Id. Shay Bilchik. Redefining the Footprint of Juvenile Justice in America IN JUSTICE FOR K IDS: KEEPING K IDS OUT OF THE JUVENILE JUSTICE SYSTEM 27-28 (Nancy E. Dowd, ed., New York Univ. Press 2011). 265 Id. at 27 266 Id. 267 Id. 268 Bilchick, supra note 264, at 27. 269 Id. at 28. 270 Id. 271 Id. at 28. 272 BECK, supra note 10, at 22. A youth counselor, Caren Flaten, conducted the study. All participants went through extensive preparation before the mediation sessions, including journaling and meeting with the facilitator to process the feelings and questions they had for each other before the meeting.
264 273

263

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and overall healing.274 The participants in this study even agreed VOM was appropriate for the most serious of crimes.275 A study in Canada produced similar results.276 Both victims and offenders of serious crimes expressed high levels of satisfaction with the VOM encounter.277 Victims said they left feeling they had more control over their lives after speaking with the offender.278 Mediation Programs for juveniles are already working effectively outside the U.S. as well. In Australia, Juvenile Justice Teams report 95% victim satisfaction with their restorative justice conference programs.279 New Zealands innovative approach already mandates restorative justice at the national level for all juvenile offenders.280 One New Zealand program saw a 27% drop in incarcerations of 17 to 19-year-old offenders from 1989 to 1996.281 Israel embraces restorative justice systems for juveniles. Israels government implemented both restorative justice practices and civil mediation from the top-down.282 The Juvenile Probation Service in the Ministry of Social Affairs pioneered the use of restorative justice during the 1990s.283 Other governmental services later joined the Ministry.284 Restorative justice experimentation in the Juvenile Probation Service included VOM as part of the psychosocial investigation and decisionmaking process regarding indictments, as well as family group conferences in youth justice at other phases of criminal proceedings.285 Many programs are still in the preliminary stages of development, but their use represents a shift in the conventional perception of justice in Israeli society.286 These modern alternatives also supplement existing traditional systems
Id. Parties also listed an opportunity to tell ones story and a chance to express emotions as benefits from the process. 275 Id. 276 Id. The study in Canada concerned 22 violent offenders involved in a Canadian VOM program. 277 BECK, supra note 10, at 22. 278 Id. 279 BRAITHWAITE, supra note197, at 49. 280 Lucas, supra note 24, at 1373. See also Beauregard, supra note 34, at 1013. 281 Drake, supra note 165, at 670-71. 282 Michal Alberstein. Israeli-Jewish cultural aspects of an event of violence: between biblical codes and Zionist ideology Israeli perspective in RESTORATIVE JUSTICE AFTER LARGE-SCALE VIOLENT CONFLICTS: KOSOVO, DR CONGO AND THE ISRAELI-P ALESTINIAN CASE 258 (Ivo Aersten, et. al, eds., Willan Publg, 2008). 283283 Id. 284 Id. 285 Id. Groups use family group conferencing especially in contexts such as child protection, fierce divorce protection, and other public institutions. Id.
286 274

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of restorative justice in the Arab population, the Druse, the Bedouin and immigrant Jews who came from Ethiopia.287 These programs serve as examples from which the United States could model their juvenile and judicial practices after. Restorative justice practices generally enhance victim compensation.288 Restitution agreements resulting from restorative justice programs have substantially higher compliance and collection rates than court-ordered restitution.289 Courts should hold open the cases proceeding through VOM as an informal proceeding until the offender completes their duties under the agreement reached in mediation. This condition is not a far stretch from the justice systems current informal case handling.290 This provides incentives for the offender to complete the agreed upon resolution or instead go back to court and face a judge. VOM allows victims and offenders to discuss their case and resolve the problem in a more timely fashion than traditional courts.291 As opposed to traditional court systems, which involve filing of documents, exchange of pleadings, pre-trial motions and trial itself, VOM entails a short premediation process.292 This shortened process allows parties to meet at times that are more convenient and on terms that are more comfortable. This shortened period reduces costs of extended litigation, as well as costs of future litigation by decreasing potential for future conflict. Even if an initial mediation process may not itself cost less than a hearing or trial, the effects of VOM reduce costs.293 VOM reduces the costs associated with multiple trials, appeals, and future litigation concerning the offender and/or victim.294

C. Safeguards In most of the VOM programs currently in use, participants have the option to refer to legal counsel before the process begins and in some circumstances during the process.295 Before mediation begins, the parties
Alberstein , supra note 282, at 258. Dickman, supra note 191, at 1713-17. 289 Id. at 1715. 290 SNYDER, supra note 99, at 171. 291 Beauregard, supra note 34, at 1012. See also Glenda L. Cottom, Mediation and Young People: a Look at How Far Weve Come , 29 CREIGHTON L. REV. 1517, 1542-43. 292 Id. 293 See generally id. 294 Id. 295 Beauregard, supra note 34, at 1019.
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learn the necessary information about VOM and alternative options.296 Parties should participate in an orientation to the program, with an attorney present, in order to make an informed decision about participation in the mediation process. While it is important to keep the proceedings informal, the presence of an attorney is necessary in some instances. 297 The safety of informed decisions by both the victim and offender far outweighs the formality a lawyers presence brings to the mediation.298 Particularly in dealing with juveniles, an attorney should be present in order help the youth understand the process and answer questions. An attorney should also warn of the consequences of accepting the mediation, as opposed to proceeding with trial.299 Both the victim and the offender should have this legal protection. Critics worry about the constitutional rights challenge that waiving rights to counsel and admitting guilt could bring.300 VOM, however, lends itself to the presence of legal counsel where necessary and wanted.301 Critics also allege informal procedures, such as VOM, seem to stand on constitutionally questionable grounds because of the possibility of juveniles feeling pressured to waive their rights without requisite knowledge.302 VOM, however, does not preclude a juvenile from seeking legal advice before undertaking it.303 Rather, VOM demands that the parties understand the entire process and its consequences before proceeding with VOM.304 Pre-mediation procedures can include telephone calls with the offender and victim, arranging for pre-mediation meetings with each part separately, interviews with each party, and face-to-face meetings between counselors and each party. 305 The opportunity for attorneys to volunteer as mediators further emphasizes the juveniles opportunity and need for requisite knowledge.306 An attorney, fully informed on VOM and its potential benefits and pitfalls, serves as a safeguard to any legally incorrect procedures during the
Shiff, supra note 153, at 231. Beauregard, supra note 34, at 1019. 298 Id. 299 Id. 300 See generally Lucas, supra note 24, at 1390-93. 301 Id. 302 Lucas, supra note 24, at 1392-93. For criticisms, see also Richard Delgado, Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice, 52 STAN. L. REV. 751 (2000). 303 Lucas, supra note 24, at 1393. 304 See UMBREIT, supra note 28, at 37-44. 305 Id. 306 See Leonard L. Riskin, Mediation and Lawyers, 43 OHIO ST. L.J. 29, 41 (1982).
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D. Too Revolutionary? Critics of VOM claim restorative justice is too revolutionary when compared to the current retributive justice system.308 The revolutionary nature of VOM is not a criticism, but rather a strength of restorative justice. Viewed in light of the statistics and research discussed in Part I,309 what the juvenile justice system needs is a revolutionary change. A shift to mandatory VOM for juveniles is not as revolutionary as it may seem. In both cause and effect, VOM simply emphasizes the strengths of the current system and remedies the weaknesses and results. The results of VOM are much like probation. Probation is the oldest and most widely used community-based corrections program.310 Courts can use probation as a sentence for first time, low-risk offenders, or as an alternative to institutional confinement for more serious offenders.311 During probation, a juvenile offender remains in the community and carries on with their daily activities, but remains restricted to comply with certain conditions.312 Diversionary VOM would act similarly. Under mandatory VOM as a diversionary program, the case would remain open, pending the completion of the conditions of the agreement reached in mediation. The interests of the juvenile, however, and their integration back into society remain at the forefront, allowing the juvenile to live in their home and resume their lives. During the period after mediation concludes, the juvenile must still carry out the agreed restitution and/or service actions in order to complete the informal case handling process. Typically, VOM participants complete approximately 80% of restitution plans.313 Most studies indicate that juveniles are more willing to complete an agreement self-created rather than a court-issued penalty, because they feel a personal obligation to the victim.314 If the offender does complete the mediation agreement, the juvenile does not retain a court record of disposition.315 Any violation or failure to complete the agreed upon resolution of the VOM mediation can result in a remand of the juveniles case to the

307 308

See generally id. Beauregard, supra note 34, at 1011. 309 See Part I. 310 SNYDER, supra note 99, at 176. 311 Id. 312 Id. 313 Beauregard, supra note 34, at 1021. 314 Id. 315 Panzer, supra note 26, at 189.

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traditional juvenile court system.316 This is the process currently used with optional VOM in many localities.317 Just as probation is conditional, the completion of VOM is conditional upon the offenders completion of the program.318 Even in mandatory VOM, the system does not eliminate prosecution, but rather suspends it. This suspended prosecution serves as an incentive for the offender to change his behaviors.319 The possibility of reverting to the traditional juvenile justice system also serves as an inventive for offenders to follow through with VOM programs.320 CONCLUSION Juveniles are different, which is why society originally developed separate court systems for them. Those court systems, however, are not working. Current juvenile justice systems forget juveniles and ignore their need for rehabilitation. Reform is necessary and is the only way to remedy the current flaws of the system. During pre-trial diversionary mediation, mediators and parties take steps to address the cause of the crime, attempt to understand how the parties feel, and aid the juvenile in rehabilitation. While courts have this informal option now, they simply do not use it. For this very reason, states must mandate diversionary VOM. By embracing restorative justice and implementing mandatory victim-offender mediation as a diversion program for juveniles, justice will again put juveniles at the forefront of the system, where they belong. ***

See generally UMBREIT, supra note 28, at 57 (discussing the optional outcomes of a mediation agreement and the possible consequences of a failure to complete the agreement). 317 See 17A N.C. INDEX 4TH INFANTS OR MINORS 155 (4th ed. 2012). 318 Id. 319 Ulrich, supra note 129, at 30. 320 Id.

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