Mediation in Juvenile Criminal Cases

by Peggy L. Chown, J.D. and John H. Parham, Ph.D. [The authors are with the Department of Political Science and Law Enforcement at Mankato State University.] In 1974, two youths in Kitchener, Ontario, Canada, went on a crime spree, robbing and vandalizing 21 homes. They paid for their crimes by visiting each of the 21 victims, apologizing for the damage they had caused, and paying restitution.1 Two decades ago, this approach was considered unorthodox, even for juvenile offenders. Today, it would meet with much resistance from individuals advocating strict penalties for lawbreakers. Yet, in several countries, including Canada, England, Finland, and even in the United States, rather than going through the traditional juvenile justice system where the basic choice is adjudicate or ignore, young offenders are being given the opportunity to meet their victims. Together, they discuss what the offender did and why; how the offense affected the victim; and how the offender might make amends. In short, offenders and their victims are engaging in mediation. THE JUVENILE JUSTICE SYSTEM Individuals who have experience with the juvenile justice system-- including victims, witnesses, and criminal justice professionals-- usually voice two major complaints. First, many believe that juveniles often get away with criminal activity. Second, victims often seem to have no input into delinquency matters. These complaints result in disillusionment and a belief that offenders generally are not held accountable for their actions. Crowded court calendars often mean that juvenile cases never get adjudicated. Even when adjudication results, young offenders usually receive probation. Thus, juveniles come away with very little understanding of what drove their antisocial behavior in the first place and are even less enlighted about how to change the behavior. More fundamentally, they fail to realize why the behavior must change. Once they have met all of the court-imposed requirements--if, in fact, there are any--juveniles are forgotten, until the next time they commit a crime. In the meantime, juvenile crime rates continue to soar. Yet, in many jurisdictions, tougher sanctions, resulting from society's return to a punishment mode, have resulted in overcrowded facilities and demands for increased funding for correctional institutions. Still, there simply is no reliable research to support the view that getting tough with offenders reduces juvenile crime. Lost in the statistics and the politics lies the very purpose of the juvenile justice system and its historical vision, which is that the system should emphasize the "best interests of the child." However, this view fails to recognize that juvenile offenders create victims, and victims suffer pain and loss. Unfortunately, these victims often feel abandoned by a complicated system that seems far removed from the ideal of real justice. Indeed, they frequently are left in the dust and debris of a juvenile system that fails to equate accountability and/or responsibility for offenders with the victim's best interests; or worse, the system fails to consider accountability as important as administrative efficiency and fiscal conservatism. In response, the juvenile justice system must identify and use a broad range of dispositional alternatives, including mediation. MEDIATION--NOT A NEW CONCEPT Mediation programs involving criminal offenders and victims currently exist in many U.S. cities, in Europe, and in Canada. The case outlined earlier represents one of the first examples of juvenile offender-victim mediation. Known as the Kitchener Experiment, or more formally, the Victim/Offender Reconciliation Project (VORP), it began as a cooperative effort between the local probation office and several civic leaders, together with a judge who was willing to try an unorthodox approach. A similar program combined the resources of the Exeter and Devon, England, police and the local probation and social services departments to form the Exeter Joint Services Youth Support Team. One of the goals of the Exeter program was to divert juvenile offenders from the existing criminal justice system, and more specifically, from the courts. Using a "structured system of cautioning"2 that punished victims according to their offenses, the team developed a reparation plan that first contemplated voluntary monetary restitution to the victim, but subsequently introduced the idea of mediation.3 The program provided a meaningful opportunity for offenders to make amends and to meet the needs of victims. Unlike the VORP program in Canada, which involved postconviction restitution, the Exeter program required mediation and reparation prior to any court appearances. In general, experts believe that the most effective juvenile offender-victim mediations take place shortly after the offense, while the memories of the parties involved are still fresh.4 A burgeoning prison population in the late 1970s prompted Finland to try mediation. Finland's program emphasized the process of media-tion and worked to increase "understanding and tolerance among people within the community."5 Typical agreements involved restitution or in-kind compensation and the offender's written promise not to engage in the offending activity again. Eventually, juvenile mediation made its way to the United States. One approach, the Victim Offender Mediation Program, began in Albuquerque, New Mexico, in 1987 as a combined public and private sector venture. Initially, most cases were referred for mediation at the preadjudication, or diversion, stage. Today, the juvenile court also refers cases for mediation at the postadjudication level.6 According to a survey conducted by the Prisoners and Community Together Institute of Justice in Valparaiso, Indiana, more than 32 programs in the United States provide some type of victim-offender mediation.7 Other sources identify many more.8 One thing is clear, though. Despite the limited amount of information available on mediation programs, their numbers continue to grow. WHY MEDIATE? Some experts suggest that in order to impress upon juvenile offenders that society takes their crimes seriously, all offenders should face criminal court proceedings. However, there simply are not enough courts and prosecutors to pursue that approach. Juvenile courts already are overcrowded, even though they hear only a fraction of all delinquency charges. Indeed, the number of courts and prosecutors needed to adjudicate every juvenile case would be staggering. According to the FBI's Uniform Crime Reports (UCR), in 1992, juveniles9 accounted for 16 percent of the total arrests of individuals who ranged in age from 10 to 21, or almost 2 million violations. They accounted for about 29 percent of total index crimes.10 In other offenses, which include those that many would not consider criminal acts--such as running away, vagrancy, and breaking curfew-- juveniles accounted for 13 percent. In many urban areas, juveniles commit nearly one-half of all reported crimes. Even these statistics do not reflect the total number of crimes committed by juveniles, however. UCR records only the number of crimes formally reported and documented. In fact, in many jurisdictions, when juveniles commit crimes, arresting officers commonly handle them without filing reports. Instead, they might take juveniles to their parents, arrange for some form of restitution, or make some other informal arrangement. Furthermore, many victims of juvenile crime do not report the incident to police because they believe that nothing will be done, or because they choose to handle it alone. Often, then, informal dispositions concerning delinquent activity amount to conciliation or a form of informal mediation, occurring without the sanctions of the judicial system and outside any organized strategy for alternative dispute resolution. Jurisdictions with juvenile courts usually handle only serious crimes or repeat offenders. Many jurisdictions do not have separate juvenile courts; often, juvenile cases emanate from probate or domestic relations courts, which do not place much emphasis on juveniles. The result simply is that many thousands of juvenile cases are handled too informally, are diverted to a variety of programs, or are just ignored. A 1985 study11 indicated that depending on the crime, juveniles were charged (a process known as petitioning) in 51 to 63 percent of all reported cases involving nonstatus crimes. Of those, only 58 to 66 percent were adjudicated. Replacing the percentages with numbers gives reason for concern. For every 100,000 offenses, at best, only 63,000 will be petitioned, and of those, only 41,580 will be adjudicated. These numbers probably are much worse today, particularly in urban areas, where a deluge of cases overrun inadequate juvenile court systems. Law enforcement officers around the country can corroborate the seriousness of the problem. Although officers arrest many juveniles for increasingly serious crimes, the offenders seldom, if ever, attend juvenile court. Society insists that offenders be held responsible for their past acts, but does not necessarily want them to pay a fine or be incarcerated. For some, responsibility may mean saying, "I'm sorry," and/or undergoing some type of rehabilitation program. But typically, most juvenile offenders go unpunished, and debate continues over the efficacy of rehabilitation programs now in use. A MODEST PROPOSAL Because most juvenile delinquency consists of relatively minor offenses such as property crimes and minor assaults,12 and because the standard juvenile justice system does a poor job of controlling juvenile crime and addressing victims' needs, it seems reasonable to look to mediation as a workable approach to satisfy the interests of society, the victim, and most important, the young offender. There is merit in having a mediation program as part of every juvenile court and probation system. Rather than simply dismissing a case, the arresting officer or the prosecutor can offer eligible offenders the option of mediation with victims before the case goes to court. All first-time offenders accused of minor offenses can be given the opportunity to participate in victim- offender mediation on a strictly voluntary basis. Of course, the cooperation of victims remains critical. If a victim adamantly refuses to meet with a juvenile, the case must proceed along the standard adjudication/diversion path. Similarly, if the juvenile will not admit to the offense or otherwise refuses mediation, the case must proceed in the usual way. As a practical point, however, the courts should not dismiss any case unless, of course, the evidence, or lack thereof, indicates dismissal. Juveniles who expect to have their charges dismissed have no incentive to participate in mediation. Either paid staff or volunteers, with appropriate training, can act as mediators. Most important, both the victim and the offender must agree on the mediator. Both parties also should agree on the mediation setting, usually a neutral location. Sometimes, particularly if the offense involves property damage, meeting at the scene of the crime might prove beneficial. Having offenders see the damage they have caused could be a powerful educational and rehabilitative or reparative tool. During mediation, each party must be allowed to speak frankly and fully. When the victim and the offender freely discuss the causes and effects of the offender's act and ways for the offender to make amends to the victim, they may take a major step toward preventing future offenses. A mutually acceptable restitution or reparations agreement should include a timetable for completion. If offenders fail to fulfill the requirements in the allotted time, their cases are remanded to the adjudication stream, and the judge decides appropriate restitution. Furthermore, offenders who fail to see the mediation process to a mutually acceptable conclusion also must face the judge. However, when offenders successfully complete mediation and reparations, the court no longer has jurisdiction over them. UNLIMITED POTENTIAL Although many jurisdictions base the decision to adjudicate on whether the offense is a misdemeanor or a felony, mediation has been used successfully for both. Mediation most often involves instances where the primary victim is an individual, rather than the State. Consistently using mediation in these types of cases would make juveniles eligible for mediation in 83 percent of index crimes and 50 percent of the nonindex crimes. In 1.2 million cases, then, mediation could be offered. Though it seems rather optimistic, this projection actually might be quite conservative. For example, variations of mediation could be used in other crimes, such as drug abuse or drunk driving. In addition, some assaults and even some arsons could be candidates.13 Most studies reveal that successful mediation depends on its voluntary nature. In a study of 1,153 mediation cases, 91 percent of the crime victims and 81 percent of the offenders responded that they voluntarily participated in mediation. An agreement was reached in 95 percent of the cases where both the victim and the offender were willing participants.14 Thus, applying these percentages to the 1.2 million cases eligible for mediation means that more than 900,000 cases might be settled without involving the courts in full adjudication. Restitution increasingly is becoming a part of settlements in both adjudications and mediations. In several programs, a significantly greater number of mediation participants completed their restitution payments than those in nonmediated groups. Albuquerque had a 93-percent versus 69-percent completion rate, while Minneapolis had a 77-percent versus 55-percent completion rate for mediated and non-mediated groups respectively.15 A WORD OF CAUTION The benefits of mediation must be weighed against its costs. First, referring cases for mediation may not reduce the caseload handled by the traditional juvenile justice system. As more cases enter mediation, cases that have been handled in various other ways will make their way into the juvenile courts. The financial cost of mediation varies with the structure of mediation schemes. Because the process can be quite time-consuming, costs can be high, especially in jurisdictions where paid staff members handle mediations. Yet, mediators need not be expensive professionals; rather, they should be people who possess sufficient understanding of the procedures and parameters of the program. Overall, mediation stands as a cost-efficient means of disposing of many cases. CONCLUSION The success of programs in place around the world testifies to the fact that mediation works, at least on a small scale. Now it is time to implement mediation in larger urban areas to see how these programs function under the different pressures and cultures found there. Juvenile crime and violence are on the rise, and the traditional juvenile justice system often leaves behind victims dissatisfied with the adjudication process, juveniles who never are held accountable for their behavior, and citizens frustrated with a system that cannot control delinquency. By contrast, successful mediation programs provide offenders and victims with a positive image of the system. The victim and the offender walk away from the process feeling better than when the normal steps are taken by the juvenile justice system. Mediation provides increased attention to each young offender, while allowing victims to express their feelings and to understand better why the offense was committed against them. Finally, mediation likely is the most efficient means of achieving restitution and other forms of reparations, not only to the victims but to society as well. Why mediate? Why not? ENDNOTES 1 D. Peachey, "The Kitchener Experiment," in Mediation and Criminal Justice: Victims, Offenders and Community, ed. M. Wright and B. Galaway (London: Sage, 1989), 16; H. Zehr, ed., The VORP Book: A Resource of the National Victim Offender Reconciliation Resource Center (Valparaiso, Indiana: 1982), 22. 2 J. Veevers, "Pre-Court Diversion for Juvenile Offenders," Mediation and Criminal Justice: Victims, Offenders and Community, ed. M. Wright and B. Galaway (London: Sage, 1989), 69. 3 Ibid, 70. 4 Ibid, 77. 5 H. Karkkainen, "Treatment of Delinquent Youth in Finland," Child Welfare 68 (1989): 186. 6 M. Umbreit, "Juvenile Offenders Meet Their Victims: The Impact of Mediation in Albuquerque, New Mexico," Family and Conciliation Courts Review 31, (1993): 92. 7 U.S. Department of Justice, Office of Juvenile Justice and Deliquency Prevention, Victim-Offender Mediation in the Juvenile Justice System (Stillwater, OK: Oklahoma State University 1990), 1. 8 S. Hughes and A. Schneider, "Victim-Offender Mediation: A Survey of Program Characteristics and Perceptions of Effectiveness," Crime and Delinquency 35(2) (1989): 218. 9 For purposes of this discussion, "juvenile" means anyone under age 18, although the legal definition varies throughout the country. 10 U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, (Washington, DC: U.S. Government Printing Office, 1992), 27. Index crimes as classified by the FBI's Uniform Crime Reports include murder and nonnegligent manslaughter, forcible rape, robbery, aggravated assault, burglary, larceny-theft, motor vehicle theft, and arson. 11 U.S. Department of Justice, Office of Juvenile Justice and Deliquency Prevention, Juvenile Court Statistics 1985 (Pittsburgh: National Center for Juvenile Justice 1988). 12 U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, (Washington, DC: U.S. Government Printing Office, 1992). 13 M. Umbreit and R. Coates, Victim Offender Mediation: An Analysis of Programs of Four States of the U.S. (Minneapolis: Minnesota Citizens' Council on Crime and Justice, 1992), 8. 14 Ibid, 10-11. 15 Supra note 13, 20. ----- from the FBI's 11/95 monthly magazine ----- Brought to you by - THE 'LECTRIC LAW LIBRARY The Net's Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com