Victim-Offender Mediation as Juvenile Court Policy

Introduction

The retributive and rehabilitative approaches to justice are dominant in the American legal system, yet research suggests that both have disappointed the juvenile justice system. The rise in youth crime and ongoing critiques of juvenile legal approaches have led to demands for reform in the way youth offenders are charged and processed. The retributive approach to justice holds that juvenile offenses are violations against the state and places responsibility for sentencing youth offenders with the state (Umbreit and Greenwood, 1999). This approach assumes that punishment will help reduce future criminal activity; however, research suggests that punishment is more likely to increase youth delinquency. The rehabilitative approach, by contrast, focuses on resolving youth offenses through interventions such as probation, cognitive training, and behavior therapy to reform delinquent behavior (McCorry, 2010).

In the same context, the restorative approach has become a widespread alternative for responding to crime. Unlike the retributive approach, restorative justice emphasizes that criminal offenses harm people and relationships. The approach therefore addresses victims, offenders, and the broader community as the principal parties concerned with restoration and healing. Its main components include dialogue, reparation, and accountability (Umbreit and Greenwood, 1999). There are three categories of restorative justice dialogue: family group conferencing (FGC), peace-making circles, and victim-offender mediation (VOM). This proposal focuses on victim-offender mediation, primarily because it is the most widely applicable approach within the juvenile justice context.

The Victim-Offender Mediation approach is the most widely used restorative program in cases involving less violent crimes committed by youth. The approach is voluntary: both victims and offenders choose whether to participate. Research indicates, however, that in some jurisdictions victims and offenders are less than willing participants. This makes a prior assessment of their willingness and readiness to meet an important step before any actual session takes place. The approach allows victims and offenders to share their accounts of the crime, and a trained mediator then assists the two parties in formulating a restitution agreement (McCorry, 2010).

Questions about the effectiveness of Victim-Offender Mediation as a court policy have prompted substantial research in recent years. A number of studies have reported significant benefits of this approach in comparison to traditional approaches to juvenile justice. Although the benefits are considerable, there remains a need for additional empirical evidence. Given the core aim of the juvenile justice system — to reduce juvenile crime — the research proposed here seeks to bridge the gap in existing studies and determine why young offenders who participate in VOM change their delinquent behaviors.

The guiding questions for this study include:

Statement of Purpose and Research Questions

i) Would it cost the state less to implement a victim-offender mediation program for juvenile offenders than it would to expand the courts, corrections staff, and facility infrastructure?

ii) Would it take the state less time to implement a program such as this than it would to expand the courts, corrections staff, and facility infrastructure?

iii) To what extent could a VOM program reduce court case backlog and thereby shorten the average time between arrest and case disposition?

iv) What is the feedback record of one or more comparable VOM programs?

v) What are the social benefits and social costs of a VOM program for juvenile offenders themselves and for the larger community?

Literature Review

vi) Are there particular types of cases that are appropriate for VOM, as opposed to others that the legislature might want to exclude?

vii) What are the major challenges that the Administrative Office of the Courts will face in implementing this proposed policy?

Since the 1980s, victim-offender mediation programs have involved face-to-face encounters between victims and offenders. Despite variations in program objectives, origins, and their placement within the juvenile justice system, the common thread is the voluntary participation of both victim and offender. Most programs seek to provide an opportunity for the two parties to meet directly. A trained mediator facilitates the discussion. Traditionally, these programs aimed to reduce victim trauma, instill humanity in the legal process, increase offender accountability, provide meaningful roles for victims, and reduce dependence on traditional methods of punishing youth offenders (Bazemore and Umbreit, 1995).

Research suggests that victim-offender mediation programs originated in the Midwest and subsequently spread to various jurisdictions across the United States (Umbreit and Greenwood, 1999). Currently, programs operate in Canada, Germany, England, and New Zealand as well. The growth in the use of VOM programs has been steady and consistent, translating into an increasing number of cases that courts find suitable for the programs. Although most programs are headed by community-based organizations, they now frequently work in partnership with the courts (Gehm, 1998).

One prior study suggests that similar practices existed among Native American communities. In that tradition, the victim and offender came together in the presence of an elder who acted as mediator. Others affected by the offense and its aftermath also attended and spoke in turns without interruption. Participants described the harm they suffered, their relationships to those involved, and their concerns about future consequences. The ultimate decision on the path forward was made privately by the offender and victim. Once the two reached an understanding, it was announced to the elders, who later invited the broader community to hear the decision.

A number of studies have reported different impacts of VOM on recidivism. One current study claims that mediation has the capacity to reduce recidivism rates (Carroll, 1995). Another suggests that youth who participate in VOM are less likely to re-offend, and if they do re-offend, they tend to commit less severe crimes. The support from these studies indicates that implementing VOM programs in juvenile justice policy will help achieve the objectives of the juvenile court. Additional research identifies VOM as a well-established, empirically supported measure for reducing juvenile delinquency.

Other scholars have attempted to explain why VOM leads to a decrease in criminal behavior among participating youth. They argue that mediation fosters the development of empathy toward victims in offenders, which reduces the likelihood of future delinquent behavior. The change in delinquent behavior is a significant outcome of the VOM program, reflecting both individual and social well-being. Understanding crime and recidivism creates an opportunity to apply appropriate interventions. Therefore, in deciding whether to implement VOM programs within the juvenile justice system, it is important to assess the program's effectiveness at achieving behavioral change (Lauritsen, Laub, and Sampson, 1992).

Research further suggests that VOM does not disrupt the court process because participation is voluntary on the part of the victim, and the state can pursue its court process independently. However, another study argues that the courts have a substantial effect on the effectiveness of VOM. When courts support the program, they allow it to function as a distinct entity from the traditional legal system. Many legal systems around the world are embracing these programs, and those systems should also participate in reviewing the terms of any agreements reached by victim and offender (Chang, Chen, and Brownson, 2003).