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DETOUR AHEAD: VICTIM-OFFENDER MEDIATION AS AMANDATORY 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 restorativejustice, 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 theoffender. 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 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, takeresponsibility 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 abrief 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 Statesand across the world. Finally, Part IV argues that widespread

implementation of mandatory juvenile victim-offender mediation as a pre-

trial 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 ofMississippi School of Law Moot Court Board.

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I have always found that mercy bears richer fruits than strict justice.

- Abraham Lincoln1

INTRODUCTION

Terrorist. Prisoner. Rebel. Nelson Mandela.

For nearly 50 years, apartheid dominated South Africa. The generalelection of 1948 made apartheid an official policy in South Africa.2Government 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 nogovernmental representation, eventually resulting in the abolishment of

non-white political representation.6 The National Party government even

refused citizenship to black individuals.7Growing internal resistance sparked violence, as well as long arms and

trade embargos against South Africa.8 A series of unpopular uprisings andprotests instigated a ban against opposition of and imprisoning anti-apartheid leaders.9 The black residents of South Africa were prisoners intheir 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 ofjoy and celebration, Mandela faced his first duty as president: confronting

the violent injustices of the past while uniting a country to move forward.11Mandela carried the weight of what decision to make in order to deal withthe governmental officials who had systematically oppressed, tortured andmurdered South Africasblack citizens.

1 Sixteenth President of the United States, serving from March 1861 until hisassassination 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.

3Id.4Id.5Id.6

Id.7Id.8 Lodge, Tom (1983).Black Politics in South Africa Since 1945. New York: Longman.9Id.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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The country contemplated many options: a Nuremberg trials repeat,blanket amnesty, sheer oversight and ignoring the past.12 Out of this debatecame the creation of the Truth and Reconciliation Commission (TRC).13The TRC laid the groundwork for restorative justice principles forging anew 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 restorativejustice, 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 Intotal, 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 away, an indispensable way to healing. Let the waters flowfrom Pretoria today as they flowed from the alter ofEzekiels vision, to cleanse our land, its people, and tobring unity and reconciliation. We have looked the beast inthe eye. We will have come to terms with our horrendouspast, and it will no longer keep up hostage. We will cast offits shackles, and, holding hands together, black and whitewill stride into the future, the glorious future God holds outbefore uswe who are the rainbow people of Godandlooking at your past we will commit ourselves: Neveragain! Nooit weer!20

Despite controversy and severe criticism, Mandela and South Africafound a way to create the united democratic government they sought andmove beyond violence and revenge through restorative justice.

Nelson Mandela. President. Hero. Inspiration. Restorative Justice

12Id.13 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 19.16Id.17Id.18Id.19Id.20 BECK,supra note 10, at 19-20.

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Pioneer.

Across the globe, many countries followed South Africas example

using restorative justice to repair their communities and cities afterwidespread violence.21 Some countries choose to implement restorativejustice in place of their day-to-day criminal justice systems.22 Meanwhileother countries, like the United States, hardly use restorative justice andinstead 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 tosupplement probation, or to mediate between parties after the offenderreceives an incarceration sentence. This is not the intended use ofrestorative justice. Instead, restorative justice is a means by which to avoidfurther harm in the retributive system of justice and work toward makingpeace and restitution between criminal victims and offenders.25

In the midst of punishment and retribution are youths that get involvedin the criminal system far too early in life. Juvenile courts, designed toseparate juveniles from adult courts that punish, cater more to the youthsneeds.26 Juvenile courts, unfortunately, also focus on punishment and

21 Theodore Kasongo Kamwinbi, Between peace and justice: informal mechanisms inthe DR Congo in RESTORATIVE JUSTICE AFTER LARGE-SCALE VIOLENT CONFLICTS:KOSOVO, DR CONGO AND THE ISRAELI-PALESTINIAN CASE 359, 359-68 (Ivo Aersten, et. al,eds., Willan Publg, 2008). DR Congo developed and implemented many informalmechanisms in response to the human tragedy that occurred in North Kivu province, withspecific references to the 2004 massacre in Nyabyondo, where militias battled foroccupation of the territory. These informal mechanisms include the Barxa

Intercommunautaire and the Commission de Pacification et de Concrode, both of which arevillage-based systems in which councils of elders meet on a regular basis to resolveconflict.

22 Fred W.M. McElrea, Twenty Years of Restorative Justice in New Zealand, availableat http://www.tikkun.org/nextgen/twenty-years-of-restorative-justice-in-new-zealand (lastvisited Nov. 12, 2012). New Zealands entire youth justice system runs on in a restorativemanner, mostly through family group conferencing, and has since 1989.

23 Paul Clark, Restorative Justice and ADR: Opportunities and Challenges, 44-NOVADVOCATE (IDAHO) 13 (2001).

24 Nancy Lucas, Restitution, Rehabilitation, Prevention and Transformation: Victim-Offender 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 theirjuvenile 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 BALANCEAPPROACH TO SAFETY 93 (U.S. Dept of Justice, Office of Cmty. Oriented PolicingServices ed., 1999).

26 See generally Cheri Panzer, Reducing Juvenile Recidivism Through Pre-trialDiversion 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 ifthey are unchangeable. Even if a juvenile wanted to change, the currentjuvenile justice system is scarce in support for this want and need. Instead

of helping juveniles change and encouraging rehabilitation, the currentjuvenile 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-OffenderMediation for juveniles who commit non-violent crimes. Specifically,implementation of victim-offender mediation at the diversion levelapproaches victims and offenders quickly after the crime and preventsjuveniles from entering the court system. Intervening with mediation at thediversion level allows juveniles to learn from their experience, takeresponsibility 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 abrief overview of the current broken juvenile justice system in the UnitedStates, evaluating its flaws and assessing opportunities for reform. Part IIIdescribes Victim-Offender Mediation and its success in the United Statesand across the world. Finally, Part IV argues that widespreadimplementation of mandatory juvenile victim-offender mediation as a pre-trial diversionary program remedies the flaws of the juvenile justice systemby focusing on the needs of juveniles and aiding in their rehabilitation andreintegration into society.

I. BACKGROUND

Man must evolve for all human conflict a method which rejects

revenge, aggression and retaliation. The foundation of such method islove.

- Martin Luther King, Jr.

A. Restorative Justice

Restorative Justice provides alternatives to the typical retributive justicesystems around the world. It is a victim-centered response to crime, givingthe 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 areemphasizing 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 thevictim and the offender. Restorative justice seeks to provide more activesupport and assistance to crime victims, who retributive, punishment-drivenjustice systems ignore.29 It also seeks to restore the emotional and materiallosses of victims as much as possible.30

In order to achieve these goals, restorative justice provides a range ofopportunities for dialogue and problem solving among those interestedparties to a crime.31 Particularly for offenders, restorative justice offers anopportunity for competency development and crucial reintegration into aproductive community life.32

At the heart of restorative justice is the theory that crimes violatepersonal relationships and personal rights.33 Traditional justice systems sayan offender violates the rights of the state when a crime is committed.34While it is true the offender violates the states laws, the offender mostimportantly violates the victimsrights.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 theElmira case,36 when authorities arrested two youthsfor vandalism.37 A volunteer probation officer responded to the vandalismcall.38 Authorities in the Elmira case thought the youth offenders wouldbenefit therapeutically from a face-to-face meeting with the victims.39

ESSENTIAL GUIDE TO PRACTICE AND RESEARCHxxvii (Jossey-Bass, 2001).29 See generally id.30Id.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).35Id. 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 Publg2007).

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 theElmira case for vandalism. A probation officer, judge, and volunteer thought a face-to-facemediation best suited the case.Id.

38Id.

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At the same time, many communities throughout North America,40England,41 and Norway42 found interest in using mediation tactics similar tothose in the Elmira case.43 By the mid-1980s, government-funded pilotschemes were in place across England.44 VOM is the oldest and mostwidely 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, amediator conducts the mediation, which results in either the formation of asolution 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 ofthose crimes face-to-face, in a safe and structured setting.51 VOM seeks tohold criminal offenders directly responsible for their actions, whileproviding important assistance and compensation to the victims.52

40 UMBREIT, supra note 28, at xliii. The first program concerning VOM occurring inthe United States came about in 1978, when the Mennonite Central Committee, probationstaff, and a local judge in Elkhart, Indiana, starting accepting cases. By the mid-1990 s, anetwork 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. Thedocumentary shows Priestley facilitating mediation between the offender and the victim.The documentary is entitled, Just One of Those Things.Id.

42Id. 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 state-directed criminal prosecution and sentencing represented a theft of that conflict. Thejournal article is entitled, Conflicts of Property,published in 1977.

43Id.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 1013.47Id.48Id.49Id.50Id.51 UMBREIT, supra note 28, atxxxviii.

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A trained mediator conducts VOM.53 The presence of a mediator allowsvictims to play an active role in the justice process through VOM, byreceiving direct information about the crime.54 Victims also have the abilityto express their concerns about the full impact of the criminal behavior andan opportunity to negotiate with the offender on a mutually acceptablemethod of restitution.55 The process allows victims to let the offender knowhow the crime affected him or her and ask questions the offender cananswer.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 restitutionplan 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.61Offenders are also better able to understand the full impact of what theydid.62 By facing victims personally, the offender is able to gain a betterunderstanding 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 theopportunity to become involved and express their concerns for the victim,

offender, and crime.65 The presence of families educates parents andguardians, as well as places accountability on these individuals to aid in therehabilitation of the offender and completion of the agreed-upon

restitution.66

53 Lucas,supra note 24, at 1375. See also Beauregard,supra note 34, at 1013.54 UMBREIT,supra note 28, atxxxviii.55Id.56Id.57 See generally UMBREIT,supra note 28, at 54-57.58Id.59 UMBREIT,supra note 28, atxxxviii.60Id. atxl.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 citizenin the community.Id.

62 UMBREIT,supra note 28, atxxxviii.63Id. atxxxviii-xxxix.64Id. atxxxix.65Id.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 greatersense of closure.67 Closure allows both parties a greater ability to move onwith their lives, without dwelling on the criminal incident that occurred.68Moving forward releases the victims from the crime, as well as the offenderfrom 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 acondition of probation.71 The court can refer the case after it accepts aformal admission of guilt.72 Sometimes, officials refer cases at both thediversion and post-adjudication levels.73

Officials to VOM refer a majority of cases involved in the juvenilejustice system, although some receive referrals from the adult system aswell.74 Judges, probation officers, victim advocates, prosecutors, defenseattorneys, or police officers can all make case referrals to VOM.75 Whilepersons connected with the offender or the criminal justice system generallyrefer cases, victims are able to initiate mediation as well.76

In the U.S., only one-third of cases receive a referral at the diversionlevel; the remaining two-thirds receive referrals at either the post-adjudication 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 awide 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, atxxxix.68Id.69Id.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, atxxxix.73Id.74Id.75Id.

76Id.77 UMBREIT,supra note 28, atxxxix.78Id.79Id.80Id. 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 totraditional justice systems.81

3. What VOM is not.

The point of VOM is not to decide the issue of guilt or innocence. Theparties are not disputants.82 Generally, one individual has clearlycommitted a crime and, in doing so, clearly victimized the other party. 83 Itis important for the parties to remember this for VOM to be effective. VOMinstead 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 forrestitution is an important part, it is not the ultimate goal of the VOMprocess. 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 victimhealing.87 Further, only through dialogue can the offender realize theconsequences of his or her actions. This dialogue fosters the development ofvictim 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 theprotections 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

81 See generally UMBREIT,supra note 28, atxxxix.82 UMBREIT,supra note 28, atxl.83Id.84

Id.85Id.86Id.87 UMBREIT,supra note 28, atxl.88Id.89 Supreme Court Associate Justice, 1965-1969. Quote fromKent v. United States, 383

U.S. 541, 556 (1966).

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100Id. at 126.

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juvenile offenders become responsible, law-abiding adult citizens.90 Theinstitution was to provide for the welfare of children within separate andspecialized judicial proceedings.91 The first Juvenile Court was created inChicago, Illinois, in 1899.92 The courts intended to protect, rehabilitate, andheal children.93 The Juvenile Court would act in the best interest ofchildren, and apply the doctrine of parens patriae, meaning literally, thefather of the country.94 The idea of separate juvenile courts spread acrossthe country, and quickly juvenile systems recognized the need for emphasison rehabilitation in addition to public safety.95

The California Supreme Court explained the intent of the juvenile courtexceptionally with the statement, the basic predicate of the Juvenile CourtLaw is that each juvenile be treated as an individual. The whole concept ofour procedure is that special diagnosis and treatment be accorded thepsychological and emotional problems of each offender so that he achievesa satisfactory adjustment.96 The underlying theory is that the disposition of

juvenile courts is to provide treatment for the causes of the delinquencyconduct, not to punish the conduct as in the adult system.97Despite the juvenile justice systemsefforts, problems remain. Juveniles

still commit crimes, and those same juveniles will probably commit morecrimes in the future.98 Further, judicial economy is suffering andrelationships between parties and communities remain broken.

A. RecidivismYouths are Still Committing Crimes.

Despite the optimism of some proponents of the current juvenile justicesystem, the system in place is at best mediocre. In 2003, law enforcementagencies reported 2.2 million arrests of person under the age of 18. 99 Fifteen

percent of male arrests and 20% of female arrests involved individualsunder the age of 18.100

Juvenile justice systems are in place to cater to juveniles because

90 Panzer,supra note 26, at 186.91Id. at 187.92 Kenneth A. Schatz,Juvenile Justice: Reflections on 100 Years of Juvenile Court, 24-

DEC VT. B.J. & L. DIG. 50 (1998).93

Id.94Id.95Id.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 DelinquencyPrevention 2006) Available atwww.ojp.usdoj.gov/ojjdp.

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juveniles are a unique demographic. Adults and juveniles differ incharacteristics and development, and therefore, each demand distincttreatments.101 Legislatures put juvenile justice systems in place in order toprevent crimes, rehabilitate offenders, and discourage future criminalbehavior.102 Despite the legislatures intent,103 current juvenile justicesystems are failing in reaching those goals. Federal legislature even tooknote that current programs and the traditional approaches are not effectivein 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.108States across the country show small pieces of the occurring recidivism.

In a sample study of recidivism rates by the Virginia Department ofJuvenile Justice, three states showed a re-arrest rate of 55% within just 12months of release from incarceration.109 Three different states reported a 25% recidivism rate for re-incarceration or re-confinement after at least oneprevious incarceration.110 Overall, nearly six in ten juveniles returned tocourt before the time they turned 18.111

In fact, when juveniles emerge from jail, they are less likely to integrate

101 See generally Schatz, supra note 92, at 50 (discussing the differences betweenadults and juveniles, and the need for the court to consider those differences whenaddressing legal matters involving children).

102

Id. (stating the court was designed to protect children and aid in rehabilitation andhealing).103 See 42 U.S.C.A. 5602(b)(2) (West 1997). Congresspolicy was to promote the

development of effective programs to prevent delinquency, to divert juveniles from thetraditional justice system and to provide critically needed alternatives toinstitutionalization[[and] to encourage parental involvement in treatment and alternativedisposition 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)).

105SNYDER,supra note 99, at 234.

106Id.107Id.108Id.109 Id. The Virginia Department of Juvenile Justice contacted other states to collect

information on juvenile recidivism rates and studies across the country. The researchshown 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 ofrelease from incarceration.

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back into society and are more likely to commit crimes.112 A majority ofadult recidivists began as juvenile offenders.113 As criminal juveniles growup, they tend to commit more serious and often violent crimes, becomingpart 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 areyouths committing crimes, but also they are likely to commit another crimeafter release from detention centers, and possibly experience other

maladjustments as an adult.117 Recidivism should be the focus of the justicesystem. Public policy demands that implementation of the theories of justicerehabilitate 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 overwhelmedthe dockets. In 2002, courts with juvenile jurisdiction handledapproximately 1.6 million delinquency offense cases.119 This meansjuvenile courts around the country handled over 4,400 cases per day.120These changes in the delinquency caseload strained both the courts

resources and programs.121 Not only did the system as courts to respond tomore 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

112 Lucas, supra note 24, at 1366. See also, Kristin Choo, Minor Hardships: JailingYouths as Adults is Gaining GroundAnd So are Its Critics, ABA J. 20 (2000).

113 Panzer,supra note 26, at 191.114Id. 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 MEDIATIONQ. 353, 354-55 (1005).

117 See Nugent, supra note 106, at 354-55. Nugent noted that studies have shownjuvenile delinquency is an indicator of adult criminal behavior, personality disorders,alcoholism, poor occupational performance and other like maladjustments.Id.

118See Panzer,supra note 26, at 157.

119 SNYDER,supra note 99, at 157.120Id.121Id.122Id.

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informal case handling123 if they believe formal court intervention is notnecessary to achieve accountability and rehabilitation.124 This is whatrestorative justice aims for: offenders accepting accountability andexperiencing rehabilitation without going to court. If the court decides tohandle the matter informally, the offender agrees to comply with one ormore sanctions.125

Courts, however, are not taking advantage of the benefits of informalcase handling. Between 1985 and 2002, formal processing through juvenilecourts increased by 13%.126 Rather than sending juvenile cases throughinformal 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 arenon-violent. The choice by the courts to use formal case handling more thaninformal 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 Byreducing these numbers and sending cases through informal case handlingprocess, like VOM, juvenile courts could lighten their caseload and functionmore efficiently.129 Experts anticipate pre-trial diversionary programs willconserve the courts time and resources for more serious crimes.130

2. Overcrowded detention centers

Not only are juvenile justice courts overcrowded, but the detentioncenters holding these adjudicated delinquents are overcrowded as well.131The number of incarcerated youths is increasing, resulting in over-crowded

123 See Panzer, supra note 26, at 189. Informal case disposition includes pre-trialdiversionary programs, like VOM.Id.

124 SNYDER,supra note 99, at 171.125Id.126Id.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 (May2000).

130Id.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 ofthe facility, as well as impairs the experience and rehabilitation of thejuvenile residing in the detention facility.133 Increasing numbers in large,typically overcrowded facilities diminish both treatment opportunities andeffectiveness of services.134 Studies show that very high recidivism ratesaccompany overcrowded juvenile centers.135

Facilities are exceeding their bed capacity.136 In some detentionfacilities, overcrowding forces juvenile residents to sleep on makeshiftbeds.137 The 2008 Juvenile Residential Facility Census138 showed 25% offacilities reported the number of residents they held in 2008 put them at orover the capacity of their standard beds, or they relied on makeshift beds. 139Overall, 3% of facilities reported being over capacity.140 About 78 facilitiesreported having occupied makeshift beds, averaging seven per facility.141 Inone instance, a juvenile detention facility had 195 residents with only 95standard 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 afar stretch if the facilities are unable to provide beds for the youths to sleepon. Detention centers are typically unfit to care for juveniles who may haveexceptional needs, such as substance abuse problems or mental disorders.144

132 Lucas,supra note 24, at 1366.133Id.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 athttp://cjjr.georgetown.edu/pdfs/ebp/ebppaper.pdf.

135Id.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 atwww.ojjdp.gov.

137Id.

138 Id. at 2. JRFC is designed to routinely collect data on how facilities operate andprovide services. The JRFC asks detailed questions on facility security, capacity, crowding,deaths, ownership, and operation. JRFC captures data on juveniles only, not adult prisonsor jails. JRFC includes most, but not all, facilities that hold juvenile offenders. Thefacilities may also hold adults or non-offenders, but data were only included if thefacility held at least one juvenile offender on the census date.

139 Hockenberry,supra note 136, at 6.140Id.141Id. at 7.142Id.143 LIPSEY,supra note 134, at 7.144 RICHARD A. MENDEL, NO PLACE 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, facilitiesmust maintain respectable standards in order to facilitate a rehabilitationand education of detained youths.145 These centers fail in being equipped tocare for different types of juveniles, some who need more care thanothers.146

Another likely alternative localities use for a lack of beds is placing

juveniles in adult detention centers.147 Despite the creation of specificcenters 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 twiceas likely to suffer physical assault and five times more likely to suffer

sexual assault at the hands of other, adult inmates.150Detention centers and facilities also hinder the development of

juveniles. The operation of some of these facilities works against thefostering of personal relationships and positive outlooks on life. In an

overall census of juvenile facilities, 38% of facilities said they keepjuveniles locked up in their sleeping rooms.151 Forty-five percent offacilities reported locking youths in isolation for four hours or more.152 Onegoal of the retributive system is supposed to be fostering reintegration of theyouth into the community.153 Isolation does not serve the goal of the justicesystem or the personal interests of the juvenile.154

The current juvenile justice system fails in many respects. Despiteovercrowded courts, judges and authorities refuse to take advantage of the

informal processing option for juveniles minor offenses.155 Overcrowdeddetention centers hurt, rather than help, a juveniles possibility of

rehabilitation.156 Further, recidivism rates are rising, as juvenile offenders

145Id. at 24-25.146Id. 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 20.150Id. (quoting Human Rights Watch Attorney, Michael Bocherek).151 Hockenberry,supra note 136, at 4.152Id. 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., WillanPublg 2007). Reintegration is a goal for both the victim and the offender. Dialogue-drivenmediation places emphasis on relationships, rather than punishments, so victims and

offenders both can regain (or even gain for the first time) their sense of communityidentity.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.

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when dealing with juveniles.165 While adults may not be likely to changetheir ideologies through penalties, juveniles are inherently less rigid in theirbelief systems.166

The Supreme Court of the United States held that children areconstitutionally different from adults for the purposes of sentencing,because juveniles have diminished capacity and greater prospects forreform.167 Juveniles, then, are less deserving of the most severepunishments.168

Juveniles lack of maturity and their underdeveloped sense ofresponsibility can lead to recklessness, impulsivity, and headless risk-

taking.169 Families and peers more easily influence juveniles by negativity

and outside pressures.170 Juveniles usually have very limited control overtheir environment and placement, and lack the ability to take themselves out

of crime-producing settings.171Because 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 ofirretrievabl[e] deprav[ity].172 Juveniles are inherently easier to fix.173Experts see children and adolescents as more malleable by treatment or re-education.174 In fact, separate laws cater to juveniles, because juvenilesoffending and crimes may be an indication of adverse socialization.175Because of a juveniles inherent nature, experts believe mediation ortherapy can correct socialization problems.176

For these reasons, juveniles are different. The creation of separate courtsystems for juveniles conceded this point. Restorative justice and VOMfurther the goal of treating juveniles appropriatelydifferently from adults.

B. Why now?

Restorative justice policies and practices emerged in direct response to

165 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).

166Id.

167 Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012).168Id.169Id. (citing Roper v. Simmons, 543 U.S. , 569). See also Graham v. Florida, 130

S. Ct. 2011 (2009).170Id.171Id.172

Miller,supra note 167, at 570.173 See generally Lode Walgrave,Restoration in Youth Justice, 31 CRIME & JUST. 543,545 (2004).

174Id.

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unresolved issues facing the juvenile and criminal justice systems throughthe Western world.177 At a time when emphasis on retribution is increasing,contradictory impulses between punishment and rehabilitation persistamong correctional policymakers and practitioners.178

For instance, a lack of clarity regarding the basic purpose of sentencingcreates such a contradiction.179 People interpret sentencingsbasic purposein 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 away to incapacitate an offender and remove them from circulation in societyfor 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 Thejustice systems need clarity, which mandatory victim-offender mediationoffers. The time has come for progression to a new system, a deviation fromtraditional juvenile courts and into rehabilitation.

C. Why VOM?

In many ways, VOM is the answer the juvenile justice system has beenlooking for. VOM offers practical remedies to the detrimentally flawedsystem. By repairing relationships and providing opportunity for dialogue,VOM addresses the needs of all parties involved in the crime. Further, theinformality of the process facilities progress with offenders and aids incompletion of restitution and rehabilitation.

1. VOM Addresses the Needs of the Victim.

Victims of crimes feel increasingly frustrated and alienated by ourcurrent system of justice.182 Even though the system exists preciselybecause criminal behavior violates individual citizens, those victims havevirtually no legal standing in America courts.183 Criminal acts are defined asa crime against the state and state interests drive the process of findingjustice.184

In many instances, victims of crimes feel victimized twice: once by theoffender, and then again by the criminal justice system that their tax dollars

177 UMBREIT,supra note 28, atxxvi.178Id.

179Id.180Id.181Id.182 UMBREIT,supra note 28, atxxvi.

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pay for.185 Their encounter with the justice system leads to increasingfrustration and anger as they realize the system ignores them and often, doesnot provide them with relevant information about the court process or finaldisposition of the case.186

In the traditional justice system, victims are in many ways taken out ofthe trial and marginalized.187 While victims are often times called aswitnesses in a trial, many watch from afar, serving a passive role.188 Inpractice, VOM allows victims to voice their feelings, emotions, anger, andregrets.189 With this voice, victims feel important and included in theprocess.190 Participation in the justice system is crucial for a victimsconcept of satisfaction and fairness.191

Further, victims may feel isolated and alone following a crime.192Rarely do criminal justice professionals take time to listen to the fears andconcerns of the victims, and then seek their input and invite theirparticipation into the trial process.193 VOM seeks to restore relationships,

and surround the victim with parties that are deeply interested in repairingtheir broken and victimized state.194 VOM does this, helping victims feelless fear and anxiety than they experienced before the VOM program.195

Critics hypothesize that victims will not want to participate inrestorative justice and VOM because they would prefer punishment and fearcontact with offenders.196 Research proves those critics wrong. In theCanberra experiments, only 12% of victims disagree with the statement,The government should use conferences as an alternative to court moreoften,197 This leaves a convincing majority, 88% of victims, who agree

185Id.186Id.187

Shiff,supra note 153, at 232.188Id.189 SeeNICHOLL,supra note 25, at 118.190Id.191 Matthew Dickman, Should Crime Pay? A Critical Assessment of the Mandatory

Victims Restitution Act of 1996, 97 CAL. L. REV. 1687, 1716 (2009).192Id. at 232.193 UMBREIT,supra note 28, atxxvi-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

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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 Aparty that gets almost no attention or consideration during a trial is theoffender.201 Neither the victim nor the offender has an opportunity to telltheir story.202 Particularly with juveniles, offenders also have needs; theseneeds, 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 Atthe 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 tounderstand they are not responsible for the crime, and it was not their

responsibility to prevent the crime.208The traditional court system often encourages offenders to deny

responsibility for their actions, or find a scapegoat to blame instead. 209Allowing the offender to take accountability for his actions is one of the

biggest strengths of restorative justice and VOM.210 Admitting guilt andtaking 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 diversionaryconference for different offense categories (3 of 4 that concerned juvenile offenses). Theexperiments collected data between 1995 and 2000.Id.

198BRAITHWAITE,supra note 197, at 46.

199Id.200 UMBREIT,supra note 28, atxxvi.201 Umbreit, et. al.,supra note 45, at 2.202Id.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., WillanPublg 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 thevictim and experience first-hand the consequences of his or her actions.213This process makes the crime and its consequences real.214 Courtproceedings lack the substantial value that a real victim can bring to thesituation. In this less formal, more personal setting, an offender can hear thevictims feelings about the incident, how the crime affected his life, andwhat the victim feels would be adequate restitution or punishment.215

Offenders also experience a need for reform and reconciliation.216 VOMallows the offender, and not just the victim, to explain his or her feelings,emotions, and possible justifications for the actions taken.217 Under thesecircumstances, the offender has a chance to recognize the wrong andexpress remorse.218 Some research suggests an apology from an offender toa victim produces higher satisfaction than restitution alone.219

The offender can attempt to right that wrong through restitution or anagreed upon means of punishment or service.220 This also allows offenders

to earn their way back into the community, through a sort of earnedredemption process.221 Incentivizing an offender to earn the respect andacceptance of the victim and community leads to increased completion ofthe reparative orders and has been associated with reductions inrecidivism.222

3. Informality Facilitates Progress

Traditional court proceedings are very formal. In contrast, VOMattempts to keep proceedings informal, working to keep parties at ease and

feel comfortable with the process.223 This informality fosters free exchangeof information, which encourages discussion between the parties and often

times allows the parties to be more honest and speak their minds. 224 Out ofthis communication comes true restoration of relationships and satisfaction

with the chosen restitution.225 Further, informality allows the parties

213 See generally Lucas,supra note 24, at 1371-72.214 Shiff,supra note 153, at 231.215 See generallyNICHOLL,supra note 25, at 115.216Id. at 120.217Id.218Id. at 104.219 Shiff,supra note 153, at 233.220Id.221

Id. at 231.222Id.223 See generally Beauregard,supra note 34, at 1018.224Id. at 1018.225 MARK. S. UMBREIT, VICTIM 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 tothe conflict.226

Discussion and a free exchange of ideas are not possible in traditionalcourt proceedings.227 The formalities of the justice system prevent partiesfrom explaining their feelings, exchanging information about thesurrounding circumstances, and expressing what it is he or she truly wantsfrom the justice process.228

The informality of VOM facilitates an environment where both victimsand offenders feel involved, less anxious, and important.229 By addressingthe needs of all parties involved in a less formal setting than traditionalcourts, 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 israpidly losing its social popularity because of the rise of violent juvenileoffenses.232 Many jurisdictions responded by lowering the age, some asyoung as 11,233 for a waiver from juvenile courts to the adult system.234Fourteen now seems to be the operative age instead of 18.235 Instead offinding a process that helps juveniles, jurisdictions are making it easier totry juveniles as adults.236 In addition, courts are applying more punitive

participated in VOM expressed a high degree of satisfaction with the process.Id.226Id.227 See generallyNICHOLL,supra note 25, at 102-04.228Id.229 See Part III, infra.230Id.231 English author, courtier, and philosopher (1561-1626).232 Panzer,supra note 26, at 188.233Id. 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 certainserious 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 responsesby courts are in direct conflict with the public policy reasons established byjuvenile courts in the first place.238

A. The proposed reform

Juvenile justice systems should reform and implement victim-offendermediation at the diversion level for juveniles who commit non-violentcrimes. With the passage of a statute for each state or a federally mandatedimplementation, juvenile justice systems can transition from their currentsystems to a more mediation and rehabilitation-focused model.

The first main intervention point for restorative justice approacheswithin the criminal justice process is the pre-prosecution phase.239 At thispoint, 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 juvenilejustice system allows youths to avoid the consequences of prosecution.

The diversion phase occurs once authorities suspect and begininvestigation into the juvenile for the crime, but before a formal charge andlitigation begin.241 Implementation of VOM at the diversion level alsoprevents adjudication of the juvenile for the time being. While other timesand options are available, VOM should occur at the diversion phase of ajuveniles criminal process.

Numerous pre-trial diversionary programs are in place in the UnitedStates.242 In a 2000 national survey of VOM programs, 34% of programsindicated their primary referral stage was at the diversion level.243

These pre-trial diversionary programs are effective and potentially lowcost alternatives to the traditional juvenile justice system in reducingjuvenile recidivism.244 The goal of diversionary programs is to remove asmany juveniles as possible from the revolving door syndrome, in turn

237 Panzer, supra note 26, at 188. See also Kelly Keimig Elsea, The Juvenile CrimeDebate: 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).

238See supra Part II.

239 James Dignan, Juvenile Justice, criminal courts and restorative justice inHANDBOOK 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.240Id. at 271.241 See generally Panzer,supra note 26, at 189.242Id. at 186.243 UMBREIT, PH.D.,supra note 66, at 2.

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the term of the contract, if the counselor determines the juvenile has failedto comply substantially with that contract, he or she may file the complaintas a petition to the court.255 At the end of the time period, not exceeding sixmonths after the date of the contract, the counselor shall close the juvenilesfile in regards to the diverted matter if the juvenile has substantiallycomplied.256

While specifics may vary state-by-state, North Carolinasstatute servesas an example of how diversionary programs work as mandatory programs.A statute similar to this, automatically diverting qualifying cases, wouldresult in a similar, but better, system than optional programs do today.

B. Mandatory VOM works

Although scarce, some communities in the United States have workingprograms 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 theU.S.

The Restorative Justice Program is an active program at North SideHigh School in Denver, Colorado.257 The program effectively mediatesdisagreements and meetings between students for fights.258 The programuses the principles of restorative justice, particularly mediation, to bringabout resolutions to the disruptions in the educational system.259

Program participants in Denver experienced an 80% satisfaction rate.260Additionally, 75% of participants felt the opposite party completed theagreements and solutions mediated.261 The school reported personal andpublic apologies, repairment of personal relationships, mutual respect, andcommunity service, among other individual results.262 School-wide resultsincluded evidence of reduced school suspensions, less use of lawenforcement, and fewer expulsions; results also showed an increased

to the other parties, specifies the length of the contract (not to exceed six months), andclauses stating the parties understand the consequences of both completing the program, orviolating its terms and conditions. After the parties sign the contract, the counselor mustprovide all parties with a copy of the contract, and notify any related agencies or resourcesfrom which the juvenile may be requesting services during this time.Id.

255 155,supra note 251.256Id.257 Thalia N. C. Gonzalez & Benjamin Cairns, Moving Beyond Exclusion in JUSTICE

FOR KIDS 242 (Nancy E. Dowd, ed., New York Univ. Press 2011).258Id.

259Id.260Id. at 252.261Id.262 Gonzales,supra note 257, at 252.

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number of self-referrals to the schools restorative justice system.263Many 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 Citationprogram in Miami, Florida, diverts juveniles by a referral system.264 Anassessment of the youths needs determines his referral to the system.265The program works to divert juveniles from the arrest process because ofthe individual and family stress associated with arrest, as well as thelabeling 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 alsoshowed a recidivism rate as low as 3% for the youths who completed the

program.268The 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 programssuccess is just one of the many examples ofdiversionary restorative programs working to aid juveniles in addressingand solving the actual causes of delinquency.270 The program avoids futurenegativity for not only the juvenile, but also the community as a whole.271

VOM has also worked in cases dealing with juveniles who committedmore serious crimes. In Anchorage, Alaska, a study focused on sevenjuvenile 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 theyreceived from the process, including rehabilitation aid, the ability to havequestions about the crime answered, personalization of the opposite party,

opportunities for apology and forgiveness, a reduction in fear and anger,

263Id.264 Shay Bilchik. Redefining the Footprint of Juvenile Justice in America IN JUSTICE

FOR KIDS: KEEPING KIDS OUT OF THE JUVENILE JUSTICE SYSTEM 27-28 (Nancy E. Dowd,ed., New York Univ. Press 2011).

265Id. at 27266Id.267Id.268 Bilchick,supra note 264, at 27.269Id. at 28.270Id.

271Id. 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 questionsthey had for each other before the meeting.

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of restorative justice in the Arab population, the Druse, the Bedouin andimmigrant Jews who came from Ethiopia.287 These programs serve asexamples from which the United States could model their juvenile andjudicial practices after.

Restorative justice practices generally enhance victim compensation.288Restitution agreements resulting from restorative justice programs havesubstantially higher compliance and collection rates than court-orderedrestitution.289

Courts should hold open the cases proceeding through VOM as aninformal proceeding until the offender completes their duties under theagreement reached in mediation. This condition is not a far stretch from the

justice systemscurrent informal case handling.290 This provides incentivesfor the offender to complete the agreed upon resolution or instead go backto 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 totraditional court systems, which involve filing of documents, exchange ofpleadings, pre-trial motions and trial itself, VOM entails a short pre-

mediation process.292 This shortened process allows parties to meet at timesthat are more convenient and on terms that are more comfortable. Thisshortened period reduces costs of extended litigation, as well as costs offuture litigation by decreasing potential for future conflict. Even if an initialmediation process may not itself cost less than a hearing or trial, the effects

of VOM reduce costs.293 VOM reduces the costs associated with multipletrials, appeals, and future litigation concerning the offender and/or

victim.294

C. Safeguards

In most of the VOM programs currently in use, participants have theoption to refer to legal counsel before the process begins and in somecircumstances during the process.295 Before mediation begins, the parties

287 Alberstein ,supra note 282, at 258.288 Dickman,supra note 191, at 1713-17.289Id. 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, 1542-43.292Id.293 See generally id.294Id.295 Beauregard,supra note 34, at 1019.

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learn the necessary information about VOM and alternative options.296Parties should participate in an orientation to the program, with an attorneypresent, in order to make an informed decision about participation in the

mediation process.While it is important to keep the proceedings informal, the presence ofan attorney is necessary in some instances.297 The safety of informeddecisions by both the victim and offender far outweighs the formality alawyers presence brings to the mediation.298

Particularly in dealing with juveniles, an attorney should be present inorder help the youth understand the process and answer questions. Anattorney should also warn of the consequences of accepting the mediation,

as opposed to proceeding with trial.299 Both the victim and the offendershould have this legal protection. Critics worry about the constitutionalrights challenge that waiving rights to counsel and admitting guilt couldbring.300 VOM, however, lends itself to the presence of legal counsel where

necessary and wanted.301Critics also allege informal procedures, such as VOM, seem to stand

on constitutionally questionable grounds because of the possibility ofjuveniles 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 partiesunderstand the entire process and its consequences before proceeding with

VOM.304 Pre-mediation procedures can include telephone calls with theoffender and victim, arranging for pre-mediation meetings with each partseparately, interviews with each party, and face-to-face meetings between

counselors and each party.305

The opportunity for attorneys to volunteer as mediators furtheremphasizes the juveniles opportunity and need for requisite knowledge.306An attorney, fully informed on VOM and its potential benefits and pitfalls,serves as a safeguard to any legally incorrect procedures during the

296 Shiff,supra note 153, at 231.297 Beauregard,supra note 34, at 1019.298Id.299Id.300 See generally Lucas,supra note 24, at 1390-93.301Id.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).

303Lucas,supra note 24, at 1393.

304 See UMBREIT,supra note 28, at 37-44.305Id.306 See Leonard L. Riskin,Mediation and Lawyers, 43 OHIO ST. L.J. 29, 41 (1982).

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mediation itself.307

D. Too Revolutionary?

Critics of VOM claim restorative justice is too revolutionary whencompared to the current retributive justice system.308 The revolutionarynature 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 thejuvenile justice system needs is a revolutionary change.

A shift to mandatory VOM for juveniles is not as revolutionary as itmay seem. In both cause and effect, VOM simply emphasizes the strengthsof the current system and remedies the weaknesses and results.

The results of VOM are much like probation. Probation is the oldest andmost widely used community-based corrections program.310 Courts can useprobation 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 dailyactivities, but remains restricted to comply with certain conditions.312

Diversionary VOM would act similarly. Under mandatory VOM as adiversionary program, the case would remain open, pending the completionof the conditions of the agreement reached in mediation. The interests of thejuvenile, however, and their integration back into society remain at theforefront, allowing the juvenile to live in their home and resume their lives.

During the period after mediation concludes, the juvenile must stillcarry out the agreed restitution and/or service actions in order to completethe informal case handling process. Typically, VOM participants completeapproximately 80% of restitution plans.313 Most studies indicate that

juveniles are more willing to complete an agreement self-created rather thana court-issued penalty, because they feel a personal obligation to thevictim.314 If the offender does complete the mediation agreement, thejuvenile does not retain a court record of disposition.315

Any violation or failure to complete the agreed upon resolution of theVOM mediation can result in a remand of the juveniles case to the

307 See generally id.308 Beauregard,supra note 34, at 1011.309 See Part I.310 SNYDER,supra note 99, at 176.311Id.312Id.313 Beauregard,supra note 34, at 1021.314Id.315 Panzer,supra note 26, at 189.

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traditional juvenile court system.316 This is the process currently used withoptional VOM in many localities.317 Just as probation is conditional, thecompletion of VOM is conditional upon the offenders completion of theprogram.318

Even in mandatory VOM, the system does not eliminate prosecution,but rather suspends it. This suspended prosecution serves as an incentive forthe offender to change his behaviors.319 The possibility of reverting to thetraditional juvenile justice system also serves as an inventive for offendersto follow through with VOM programs.320

CONCLUSION

Juveniles are different, which is why society originally developedseparate court systems for them. Those court systems, however, are notworking. Current juvenile justice systems forget juveniles and ignore their

need for rehabilitation. Reform is necessary and is the only way to remedythe current flaws of the system.

During pre-trial diversionary mediation, mediators and parties take stepsto address the cause of the crime, attempt to understand how the parties feel,and aid the juvenile in rehabilitation. While courts have this informal optionnow, they simply do not use it. For this very reason, states must mandatediversionary VOM. By embracing restorative justice and implementingmandatory victim-offender mediation as a diversion program for juveniles,justice will again put juveniles at the forefront of the system, where theybelong.

* * *

316

See generally UMBREIT,supra note 28, at 57 (discussing the optional outcomes of amediation agreement and the possible consequences of a failure to complete theagreement).

317See 17A N.C. INDEX 4TH INFANTS OR MINORS 155 (4th ed. 2012).

318Id.319 Ulrich,supra note 129, at 30.320Id.