May our nation continue to be the beakon of hope to the world. -- The Quayle's 1989 Christmas card. [Not a beacon of literacy, though.]
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
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.
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
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
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
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
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.
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
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.
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?
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
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,
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
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