Alternative Dispute Resolution for Young Offenders: Moving from Punishment to Cooperation

Zach Maria

J.D. Candidate, Moritz College of Law 2020

Introduction

“Our current criminal justice system has no provision for restorative justice, in which an offender confronts the damage they have done and tries to make it right for the people they have harmed. […] Instead, our system of ‘corrections’ is about arm’s-length revenge and retribution.”[1] Mediation and other alternative dispute resolution (“ADR”) methods are commonly thought of as methods to be used in civil situations.[2] They are not usually considered as an option in the criminal justice system, primarily because the goals of alternative dispute resolution do not line up with the separate goals—and sometimes requirements—of the criminal justice system. The main aim of ADR processes are to avoid court, which usually saves money for the parties and gets the problem solved more quickly and efficiently.[3] On the other hand, the criminal justice system requires that defendants get their day in court should they so choose, and it provides different avenues to appeal convictions. This process often lacks speed and efficiency.[4] While there is not much usage of alternative dispute resolution processes in the criminal justice system, there is a theory of “restorative justice” where the people affected by the crime work on figuring out how to best repair the harm caused by the wrongdoing.[5] This is best accomplished when all of the parties that were involved in the incident, including the community, can get together to have the offender take responsibility for their actions and then focus on repairing the damage done to the victim and the community.[6] While restorative justice might not fit the goals of the criminal justice system for adult offenders—which focuses mainly on retribution—the concept could greatly benefit the juvenile justice system because its primary focus is on rehabilitation.[7] Using alternative dispute resolution and restorative justice concepts more frequently when dealing with juvenile offenders would create a better juvenile justice system that focuses on the righting of wrongs instead of punishment, to the benefit of both the offender and the victims.

Part I of this note will describe how the juvenile justice system has evolved over time and how the Supreme Court has ruled on some of those changes. Part II will then provide an in-depth discussion of restorative justice, considering some of the processes used for children both domestically and abroad. Finally, Part III will consider how those restorative justice techniques can be applied to more juvenile court systems and some of the benefits to that application.

I.                Background

A.               Alternative Dispute Resolution and the Criminal Justice System

Alternative dispute resolution has very different goals from the criminal justice system. In alternative dispute resolution, the top-line goal is to use processes that avoid going to court.[8] This is an attempt to find a common ground that could be beneficial to both parties, all while costing less money and taking less time.[9] While each side often takes adversarial positions and wants to get everything they are asking for, the overarching purpose of alternative dispute resolution is to find a compromise or settlement.[10] On the other hand, the goal of the criminal justice system is generally to punish people who do wrong.[11] In order to punish them, they must prove that the wrong was committed by the defendant in a court of law.[12] Unless there is a plea, both sides are fighting hard to win; there is no middle ground. Furthermore, the criminal justice system imposes a series of protections for individuals accused of crimes, including appeals. Appeals impede parties that go to court from achieving finality, and they are also not cost efficient.[13]

Additionally, while there is a specific, personal subject matter interest in cases of alternative dispute resolution (each party has a very explicit personal interest that it is attempting to achieve), criminal law usually has more broad, public policy interests at play, such as deterrence, incapacitation, rehabilitation, and retribution.[14] The criminal justice system is not just meant to deal with those that have already committed crimes, but to prevent future crime.[15] This system is meant to demonstrate that if you do something wrong, there will be a consequence. An  interest in preventing and punishing all crime is broader than the specific interest that someone might take to alternative dispute resolution. The criminal justice system does have to deal with individual cases as well, but the cases are viewed as a crime against the State, not specifically against the victim. As a crime against the State, the parties’ specific interests rest more in the background, while the wider policy issues of preventing and punishing crime comes to the foreground.

Just because the goals of alternative dispute resolution and the criminal justice system do not always line up does not mean that there is not some overlap. While there is currently not much use of alternative dispute resolution in the criminal justice system, restorative justice is beginning to take hold.[16] Restorative justice “is a collaborative process involving those most directly affected by a crime” where they determine “how best to repair the harm caused by the offense.”[17]  While restorative justice sounds like an alternative to the current focuses of the criminal justice system that could foster better outcomes for both victims and the criminals themselves, it still conflicts with a lot of the system of criminal justice’s goals. However, there is an area of the criminal law that could benefit greatly from the ideas and concepts of restorative justice: juvenile court.

B.               History of Juvenile Justice

Youth have been treated differently in the criminal justice system since the dawn of time. Even as long as 4000 years ago, the Code of Hammurabi (2270 BC), one of the oldest and most complete written legal codes, understood the difference between a child offender and an adult offender by having its own separate discussion about children’s issues.[18] The Romans, in addition to the Catholic, Jewish, and Muslim faiths, all had specific differences between adult punishment and child punishment.[19] By the fifth century BC, the Romans had codified these differences in treatment in the Twelve Tables, the legislation that stood at the foundation of Roman law, with punishments for children that were less severe than adults.[20] Roman law continued to evolve, from only exempting children who could not speak to expanding exemptions to children under seven, as the Romans started to have a better understanding of the development of children.[21] Children were classified into three categories by the Romans by the fifth century AD: infans, proximus infantia, and proximus pubertati.[22] Infans were seven years and under and not held criminally responsible for their actions; proximus infantia were children between the age of seven and when they hit puberty (fourteen years old for boys and twelve years old for girls) and were held liable only based on their capacity to understand the difference between right and wrong; proximus pubertati were children over the age of puberty and were held criminally liable the same as adults.[23]

These three categories became part of the structure of the English common law during the eleventh and twelfth century, with only minor adjustments.[24] The children under the age of seven continued to not be held liable and children over fourteen were treated the same as adults, but the middle group, from the age of seven to fourteen, were only liable if they could be proved to have formed criminal intent, understood the consequences of their actions, and could tell the difference between right and wrong.[25] Additionally, by the fifteenth century, several kings of England had created and vastly expanded the Chancery courts, whose main goal was to consider petitions of those in need with special circumstances, such as women because of the death of a spouse, or child because of abandonment.[26] Through these courts, the king used the right of parens patriae (“parent of the country”) to let the courts act in loco parentis (“in the place of parents”) in order to provide special services for those in need.[27] This principle was (and still is) a main foundation of juvenile courts in America, as the government has the ultimate authority over juveniles and is supposed to make decisions based on the best interests of the children.[28]

In America in the eighteenth and early nineteenth century, juveniles were being thrown into jail with the adult population.[29] Often, even innocent children were thrown into jails, simply because there were no other options for them.[30] Additionally, cities were trying to deal with high rates of child poverty and neglect.[31] These issues led to the creation of the Society for the Prevention of Pauperism, which worked to establish houses of refuge for children instead of throwing them in jails.[32] While there were grand claims of success of these houses of refuge, by 1850 it became clear that they had largely failed as rehabilitation centers and had unintentionally essentially become prisons.[33]

Until the end of the nineteenth century, criminal courts tried both youth and adult offenders.[34] However, some state court systems, such as Massachusetts beginning in 1874 and New York in 1892, began to pass laws so that juveniles had separate trials.[35] This idea, along with other reform ideas such as probation, helped lead to the establishment of the first juvenile court in the United States in Cook County, Illinois in 1899.[36] The court based itself on the doctrine of parens patriae, giving it the right to intervene in the lives of juveniles that needed help or were on the wrong path.[37] The primary goal of the court was rehabilitation and protective supervision, which allowed the judges to have broad discretion on how to handle individual cases.[38] Within eighteen years of the creation of the juvenile court of Cook County, all but three states had passed a law to set up a juvenile court system in order to try to rehabilitate juvenile offenders instead of punishing them, and by 1932 there were over 600 independent juvenile courts in the United States.[39] This period of development, from 1899 to the 1960s, emphasized the less than fully developed cognition and morality of juveniles and deemphasized the legal rights of the child, as the cases were treated as civil cases and not criminal.[40]

By the 1950s, however, the public was becoming concerned about the effectiveness of the juvenile justice system.[41] They were concerned about the disparities that were created due to judges having so much discretion.[42] Similarly situated juveniles could receive vastly different sentences just based on which judge they were before or even how the judge was feeling that day. This was recognized by the Supreme Court beginning in the 1960s, as it began to make decisions that formalized juvenile courts and increased the Fifth and Fourteenth Amendments due process protections afforded to the juveniles.[43]

In 1974, after five years of the United States Senate Judiciary Committee studying the juvenile justice system, the Juvenile Justice and Delinquency Prevention Act was passed, also known as the JJDPA.[44] The JJDPA created the office of Juvenile Justice and Delinquency Prevention inside the U.S. Department of Justice and gave states access to federal grants for programs that addressed delinquency and delinquency prevention.[45] The JJDPA had two main requirements when it became law in 1974: 1) the deinstitutionalization of status offenders; and 2) sight and sound separation.[46] The JJDPA required that instead of institutionalizing juveniles for status offenses (conduct that would not be a crime if the conduct was conducted as an adult), alternative methods should be used.[47] The sight and sound separation requirement was implemented to try to keep juveniles from being detained in any institution in which they could possibly have contact with adult inmates.[48] Another requirement called the jail removal requirement was added in 1980 that disallowed the placement of youth in adult jails except under certain circumstances.[49]

The JJDPA was poised to help remove juveniles from detention centers and focus on other alternative options, such as some community-based offerings.[50] However, starting in the 1980s, there was a perception that juvenile crime was on the rise.[51] In 1982, there was a survey that showed that eighty-seven percent of the respondents believed that serious juvenile crime was increasing at an alarming rate, even though the arrest rates for the serious offenses were relatively stable between 1975 and 1987.[52] Nevertheless, based on this trend and the popularity of being “tough on crime” at this time, many states passed punitive laws, including mandatory minimums and automatic transfer to adult court for certain crimes.[53] The 1990s saw the acceleration of these trends, with more and more minor offenses landing juveniles in detention.[54]

Eventually, in the late 1990s into the 2000s, youth incarceration rates began to recede.[55] Spurred on by California, states began to reduce the amount of juveniles in confinement and the amounts of offenses that could lead to confinement.[56] Today, the main goal of the juvenile justice system is still rehabilitation, as it has been since at least the establishment of the houses of refuge.[57] With a focus on rehabilitation, along with the fact that the juvenile court system is exceptional in that it is not set up in the same way as the adult criminal court system, there is some room for alternative methods of dealing with youth offenders.[58]

C.              The Supreme Court and Juveniles

The Juvenile Justice System exists in a unique place in the United States. It is not fully adult criminal law, nor is it purely civil in nature.[59] That duality has caused some confusion, which has required the Supreme Court to decide where exactly juvenile law fits in our system. The decisions the Supreme Court has made have continued to differentiate the juvenile system from the adult system, and that differentiation has allowed for more flexibility to use restorative justice techniques.[60] The first case that began the Court’s most important period (from the 1960s through the 2010s) of deciding where the juvenile law fit was Kent v. United States.[61]

Morris Kent, Jr. was under the authority of the D.C. juvenile court and on probation when his fingerprints were found at a crime scene.[62] The juvenile judge waived the jurisdiction of the juvenile court with no hearing, no ruling on the motions filed by Kent’s attorney, no conference with Kent or his parents or his attorney, no findings, and no reasoning for the waiver.[63] Kent was then found guilty.[64]

On appeal, Kent’s counsel argued that Kent was denied rights that an adult would have in the same situation and that the waiver of jurisdiction was made in error.[65] The Court ruled that because of the procedural error with respect to the waiver of jurisdiction, they would remand the case.[66] The Court then opined that while they would not decide the case on the issues brought up about the deprivation of rights that an adult might have in the same situation, the contentions by Kent raised “issues as to the justifiability of affording a juvenile less protection than is accorded to adults suspected of criminal offenses.”[67] Additionally, the Court showed concern that it seemed children receive “the worst of both worlds” in juvenile courts: “[the children] gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”[68] This concern stemmed from the evidence that some juvenile courts, in addition to not providing the rights that adults have, are lacking in the personnel, facilities, and techniques to perform adequately in a parens patriae capacity.[69] This dicta foreshadowed a case that the Court would consider the next year, in the case of In re Gault.[70]

Gerald Gault was fifteen when he was taken into custody after police received a complaint that he and another boy had made a telephone call to a neighbor in which they made lewd and indecent remarks.[71] There was no notice given to Gault’s parents that he was being taken into custody.[72] Once the parents found out that their son was in custody, they went to the detention home that Gault was taken to and the probation officer said that there would be a hearing the next day.[73] Gault and his parents were not informed about the charges he was facing.[74] At this hearing, and at another subsequent hearing, no transcript or recording was made and the complainant was not present.[75] After the first hearing, the judge held Gault for four or five days with no explanation.[76] He was then released and driven home, again with no explanation.[77]

After the second hearing, a report was issued by the court (but not disclosed to Gault or his parents) that committed Gault as a juvenile delinquent to an industrial school until he was twenty-one.[78] That order would have meant Gault could have faced up to six years at this school, while an adult charged with this crime would have received a maximum penalty of a fifty dollar fine and imprisonment for no more than two months.[79] There were no direct appeal rights by Arizona law in juvenile cases, but a writ of habeas corpus was filed.[80] The judge testified that the basis for his conclusion that Gault was “habitually involved in immoral matters,” which was important for him to conclude he was a juvenile delinquent, came from an incident where Gault had stolen a baseball glove and had lied to the police about it.[81] The judge admitted that there was “no hearing” and “no accusation” related to the matter because there was a lack of material foundation, but the judge still saw that incident as a relevant factor.[82]

The Supreme Court overturned the juvenile judge’s decision.[83] They ruled that the processes that were followed by the judge violated Gault’s due process right, and that the Fourteenth Amendment and due process apply to juveniles.[84] The opinion stated that “the condition of being a [child] does not justify a kangaroo court.”[85] The Court ruled that to ensure fairness in the hearings, juveniles had the right of notice of the charges against them,[86] the right to legal counsel,[87] the right to not self-incriminate,[88] and the right to confront and cross-examine witnesses.[89] However, the court does not go so far as to apply all the requirements of a criminal trial to a juvenile hearing; it is merely required that the hearing does not violate due process and fair treatment.[90] Additionally, the Court seemed to think that the state, and therefore the juvenile court, having power over the children through parens patriae was dubious. By ruling that more rights were available to children in these hearings, they limited the exercise of that power to an extent.[91]

The Court made one more decision that expanded the constitutional rights that would apply in juvenile cases, In re Winship.[92] In that case, the Court found that guilt must be found beyond a reasonable doubt in juvenile cases and not just by a preponderance of the evidence.[93] However, the next year, the Supreme Court began to slow the expansion of applying rights from criminal trials to juvenile cases.

In McKeiver v. Pennsylvania,[94] sixteen-year-old Joseph McKeiver was charged with robbery, larceny, and receiving stolen goods.[95] He requested a jury trial, but that request was denied, and a juvenile court judge found him to be a delinquent child.[96] On appeal, the Pennsylvania Supreme Court found that there was no right to a jury and the Supreme Court upheld that decision.[97]

The Supreme Court stated that because a juvenile court proceeding has not been held to be a criminal prosecution, the trial by jury aspect does not automatically apply to juvenile cases.[98] The Court said that they have to decide if the due process clause’s requirement of fundamental fairness would require a trial by jury.[99]  Because the juvenile system is so unique, the requirement of a jury would make it harder for the system to work the way it should.[100] Moreover, since allowing a jury trial would bring the proceeding closer to a criminal trial and further away from rehabilitation of the minors, the Court held that due process was not violated.[101] They wanted to distinguish that juvenile courts are not adult criminal courts; if they were to superimpose all the criminal rights and processes on juvenile law, there would be no need for a separate juvenile system.[102]

Additionally, the Court wanted to allow juvenile courts more room to experiment in order to find new ways to treat juveniles.[103] They stated: “[w]e are reluctant to disallow the States to experiment further and to seek in new and different ways the elusive answers to the problems of the young, and we feel that we would be impeding that experimentation by imposing the jury trial.”[104] The Court, under previous decisions, had incorporated some rights that adults would have in a criminal case; this case was used to prevent making juvenile law too much like adult criminal law and keep it functioning in a way all its own.

After McKeiver, the Supreme Court did not hear many substantive juvenile cases until the 2000s. There was Thompson v. Oklahoma, where the Court held that the execution of offenders under sixteen violated the Constitution.[105] he next year, there was Stanford v. Kentucky, where the Court decided that capital punishment for juvenile defendants between sixteen and eighteen was constitutional.[106] Other than that, however, juvenile law was mostly decided by how the states and Congress had decided to steer it. Then, in Roper v. Simmons,[107] the Supreme Court stepped in to make another substantial impact on the law.

Seventeen-year-old Christopher Simmons was convicted of murder and sentenced to death.[108] After his sentencing and exhausting almost all his appeals, the Supreme Court decided Atkins v. Virginia.[109] In that case, the Court held that the Eighth and Fourteenth Amendments prohibited the execution of a “mentally retarded person.”[110] After that, Simmons filed a new petition for relief, claiming that Atkins established that the Constitution prohibited the execution of a juvenile who was under eighteen when the crime was committed.[111] The Missouri Supreme Court agreed, holding that since Stanford, the national consensus has developed against the execution of juvenile defenders.[112] The Supreme Court agreed with the Missouri Supreme Court decision.[113] They noted the parallel national consensus between not killing the mentally disabled and not killing juveniles.[114] They then held that there is “sufficient evidence” that our “society views juveniles… as categorically less culpable than the average criminal” and because of that, the Eighth Amendment’s prohibition on cruel and unusual punishment prevents the juvenile death penalty.[115] The Court went on to discuss the evidence that differentiates between adult criminals and juvenile criminals.  First, they stated that “a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults…” which can lead to “impetuous and ill-considered actions and decisions.”[116] Second, they mentioned that juveniles are more susceptible to negative influences and outside pressures.[117] Finally, they noted there is the fact that the character of a juvenile is not as well-formed as an adult.[118] These three differences make it impossible to conclude that a juvenile falls among the worst offenders.[119]

Not very long after Roper was decided, Miller v. Alabama[120] came before the Court. In this case, two different fourteen-year-old offenders were convicted of murder and sentenced to life in prison without parole.[121] Life in prison without parole was the mandatory sentence; the judge or jury could not apply a different sentence.[122] One of the offenders filed a habeas petition that claimed that because of the decision in Roper, a mandatory sentence of life in prison without parole violates the Eighth Amendment.[123] The Supreme Court agreed, based partially on the fact that youth offenders do not have the same culpability as adults and have a greater ability to be reformed.[124] Additionally, the Court compared life without parole sentences to the death penalty itself, because sentencing a child to life without parole is a harsher punishment than to an adult and is essentially taking away their life.[125] Furthermore, they would be receiving a greater sentence than adults that committed the same crimes.[126] The Eighth Amendment, they held, would forbid such a sentencing scheme and barred mandatory life-without-parole sentences.[127]

The Supreme Court decisions made it clear that the juvenile justice system is not the same as adult criminal justice system. The Court made it clear that they understand that juveniles are less culpable than the average criminal.[128]They also made sure to recognize that one of the main tenets of the juvenile courts is that there is room for experimenting in order to find new ways to treat juveniles.[129] This room for experimentation is what can allow juvenile courts to begin to use and develop restorative justice techniques, as laid out in part II.

II.              Discussion

A.               ADR, Restorative Justice, and Juveniles

The juvenile justice system has a different overall goal than the general criminal justice system, look out for the best interests of the child, and try to rehabilitate them.[130] This has been a challenge over time, as Part I of this note has shown, because while it is known that children are different than adults, courts in the United States have struggled throughout history to find the exact differences and decide how those differences should be handled. The Supreme Court has recently begun to recognize the difference in culpability as well as the increased chances for a child offender to be reformed. At the same time, the Court has provided more protections for the children in the juvenile system, taking away some of the power of the juvenile court by applying some of the rights that apply to adult criminal cases while still not making proceedings against juveniles into a completely criminal trial. This “middle ground” opens up opportunities to try to find better ways to deal with juvenile offenders, because judges still have some discretion to do what is best for the child.

One of these “opportunities” that has taken hold in some jurisdictions is restorative justice.[131] Restorative justice is the idea that crime is more than just breaking the law; it causes harm to people, relationships, and the community.[132] As such, the emphasis of the juvenile justice system should be on repairing the harm caused, not just punishing those who caused the harm.[133] This requires that the people that are affected by the crime participate in the decision of how to repair that damage and how to prevent future issues.[134]  Restorative justice processes can be used in both adult and juvenile cases, but the way that the juvenile justice system is set up seems to make restorative justice much more tenable to use with juveniles.[135] The processes can be used to divert offenders away from the traditional juvenile justice processes completely, or they can be used to compliment or supplement those processes.[136]

By using mediation and other restorative justice techniques,[137] it is possible that the goal of the juvenile justice system can be better met than if the court were to use the normal techniques they use in the adult criminal justice system. Additionally, using these techniques will benefit the children more, because restorative justice does not focus on the punishment but rather the righting of the wrong, which might help steer children from the wrong path to the right one when they have to come face to face with the people they have hurt. Children do not have the same sort of culpability that adults do, as their minds are not fully developed, so using restorative justice techniques is fairer to the children as well.

B.               Current ADR Uses for Juveniles

Australia focuses on restorative justice processes when trying to rehabilitate their juvenile offenders.[138] Australia uses three main processes: 1) conferencing; 2) circle sentencing; and 3) victim-offender mediation.[139] Conferencing is the most widely used of the three, and is sometimes referred to as youth conferencing.[140] Courts, prosecutors, and police can refer juveniles to conferencing when they commit a crime that is too serious for a warning.[141] In this conference, youth offenders and their families are brought face-to-face with their victims, the victim’s supporters, and police.[142] The victim is not forced to participate in this conference, however, and they can opt not to attend.[143] Additionally, other experts or respected members of the community may be invited to participate.[144] In this meeting, an impartial person facilitates a discussion about the impact the offender’s actions had on everyone involved in the situation.[145] The parties also mutually develop a plan for the offender to repair the harm caused.[146] These plans might require an apology, some sort of community service, reparations for the victims, counseling, treatment for addictions, and/or donations to charity.[147] There is also often a requirement that steps be taken to reconnect the young person with their community to prevent them from further offending.[148] If the parties cannot agree on a plan, the matter will be sent back to the referring party.[149] Youth conferencing is not just used in Australia. New Zealand also is one of the leaders in youth conferencing.[150] In fact, over the past thirty years, conferencing has grown and developed substantially.[151] It is now starting to be used more in Canada, the UK, and the United States.[152] It has also been introduced to some Latin American and African countries.[153]

Circle sentencing is another process that is used in Australia, as well as in Canada.[154] This process focuses mostly on the aboriginal people of the country, as there is often less trust of the traditional criminal justice system plus other barriers that often make traditional sentencing difficult.[155] It requires the individual involved to have pled guilty and taken responsibility for the crime.[156] After that, the judge, the offender, and community members (possibly including the victim, the family of the victim or offender, well respected community leaders, and the police) sit in a circle and communally determine a sentence that is appropriate for the specific offense and offender.[157] There can be between fifteen and fifty individuals in the circle, with discussions ranging from the underlying cause of the specific crime to what can be done in the community to help prevent this behavior.[158] Because of the complicated nature of this process, along with the commitment and time it needs, it is almost exclusively used if the offense is very serious or the circumstances of the offender justifies it.[159] This process is not exclusively used with children; the focus is the aboriginal people, but it does not exclude use on youth offenders.[160]

A third process that is widely used in Australia is victim-offender mediation (“VOM”).[161] This is a mediator facilitated discussion where the victim and offender discuss the offense, its consequences, and possible means of repairing the harms that were caused.[162] Both sides have the opportunity to express their feelings and their perceptions of the offense, and together they get to discuss their own approach to achieving justice in this circumstance.[163] In VOM, there could also be participation of various support persons, like the families of the victim or the offender.[164] For VOM to be an option, the victim needs to be a willing participant; it is not like conferencing, where the victim can opt not to come and the conference can still happen.[165] Without the victim, the offender cannot participate in VOM. In victim-offender mediation, different courts take different views of the method’s importance. In some Australian territories, the VOM occurs after a finding of guilt but before sentencing, with the judge able to take into account the outcome of the mediation.[166] However, in other territories, VOM is only done after sentencing, where it has no impact on the sentence and is only done for restorative purposes.[167] In addition to its use in Australia, there are an estimated 400 VOM programs in America and similar numbers in Europe.[168] However, it is not specific to youth offenders, so the number of programs that would actually benefit youth offenders in America is almost certainly smaller than the given figure.

Finally, one other recently popular restorative justice process is drug courts.[169] These drug courts are part of the docket in juvenile courts that focus on cases of substance abuse in youth offenders.[170] After a youth offender is found to be an alcohol or substance abuser, the court helps the child and their families get connected with services to help reduce and eliminate the problem and then helps transfer them into long-term supports.[171] These drug court programs often have very stringent rules, such as random and frequent testing, mandatory participation in treatment, regular check-ins, obtaining employment, and completion of high school or GED equivalency.[172] When youth offenders are able to follow rules, there are sometimes incentives such as verbal praise, certificates, or gift cards.[173] When they fail to meet the requirements, they often are forced to write essays or do community service.[174] If able to successfully work through the program, youth offenders can reduce or eliminate their original charges.[175] However, because of the strict requirements and the invasiveness of the drug courts, many youth offenders opt not to participate.[176] This has not prevented the spread of these courts, however, as there were about 500 different drug courts for youth operating in the United States by 2009.[177]

III.            Proposal

While there is some use of restorative justice/ADR processes in some juvenile courts throughout the United States, there is much more room to expand to other related processes that could benefit the youth offenders, the victims, and the communities. As the science keeps evolving and growing, we have found more and more reason to believe that children are not as culpable for their actions as adults.[178] This, along with the juvenile justice system’s goal of rehabilitation, calls for approaches that are somewhat creative in order to give the offender a chance to learn from the crime and a chance to make it right.

The best solution seems to be a mixture of the processes that were described in the previous section of this note. In an ideal world, non-serious crimes would be dealt with by conferencing or VOM almost exclusively. After the juvenile is charged with the crime (and if they admit to committing the crime), they would be put into one of these processes, depending on the victim’s willingness to participate. If they are, then they would do victim-offender mediation. After discussing the crime and their feelings, guided by the mediator, they would discuss possible punishments. The mediator would have a list of some sort of the legal punishments that could be available and can help the parties involved come up with a solution that works for everyone. If no consensus can be reached, the offender would be sentenced by a judge with the information from the mediation. If there is a consensus on a suitable punishment, the judge will take the sentence unless there is evidence of coercion of the victim. If the victim does not want to participate, then the offender will attend conferencing. There would be at least one police officer, several community members, a social worker, the lawyers, and the families if they desire. In that discussion, they would talk about issues in the community that could lead to this crime and what can be done. In addition, they would discuss a sentence that would be good for this individual that would be acceptable to everyone. Again, if no decision is made for the group, the judge will make it at the sentencing. If there is a consensus, then the judge will give that sentence.

For more serious crimes, there would be three different avenues of action. First, if the offender is known to be a substance abuser or there are other inhibiting factors in their life, such as abuse of some kind, then there will be drug court programs to help reduce or eliminate the sentence. The child would have the option to be placed in the program to get help, and once completing it, the child could get their sentence reduced. If the youth offender does not qualify for that drug-court-like program, then there would be the possibility of some sort of circle sentencing if the crime committed was serious but non-violent. This would involve a lot of community participation to help figure out a sentence for the youth. If there was an agreement of what sentence should be imposed, the judge would accept it. Finally, if the crime is violent or the offender does not want to be involved in either of those situations, then the judge will make a determination.

As with any sort of change, it is important to be able to justify the reasonings. ADR as a whole usually is able to lower costs and help resolve issues more quickly and efficiently.[179] In addition, one of the goals here would be to lower rates of reoffending. It also seems important to make sure the people involved in the process, especially the victim, feels heard. For this information, we can look at studies that have been done around these aspects and see if there really are the anticipated benefits to ADR in the juvenile justice system and if there are any downsides.

San Mateo County in California has been doing VOM through their juvenile courts since 2001.[180] The County released a study about their program in 2009 focusing on an evaluation they conducted from 2007–2008.[181] In the study, it was found that both victims and offenders were highly satisfied with the mediation, as ninety-five percent of the participants agreed or strongly agreed that they were able to speak their mind and ninety-one percent believed it was helpful to meet the other party.[182] The victims in particular strongly expressed positive outcomes from the mediation, with ninety-five percent of them stating that they got justice in their case.[183] The victims also all agreed that they had received a satisfactory agreement and that they were able to get their questions or concerns answered by the offender.[184] Offenders were also quite satisfied, with many of them feeling that they could speak their mind and that the process was fair.[185] Offenders also reported that they felt somewhat better about the criminal justice system after their mediation.[186] Finally, ninety-seven percent of the offenders said they would not commit another crime and that they had reached a satisfactory agreement.[187] The study did not look at recidivism rates, so there is no data on whether or not those rates decreased. Furthermore, there was also no data that looked at whether these programs reduced time and efficiency when compared to non-ADR juvenile cases.

Another research paper from Australia was written in 2018 where the researchers assess some of the impacts of conferencing.[188] Masahiro Suzuki and William Wood’s evaluation of past studies found that there are some favorable outcomes for victims, such as increased satisfaction and redress, and offenders, such as accountability, compared to existing criminal justice approaches.[189] However, their analysis also showed some weaknesses. There were studies that found that there was a “limit” to the effectiveness in the level of mutual understanding between victims and offenders, and also in the perceived sincerity of the apologies.[190] The most important analysis was the analysis of reoffending: the paper claimed that the literature is mixed.[191] There is some evidence that there is a positive impact on reoffending, but there is also some evidence that there is a minimal or no impact.[192]

In the United States, there is a very successful model for juvenile justice: Missouri. The “Missouri model,” as it is sometimes called, is a “caring, personal approach” to youth offenders.[193] The Missouri Division of Youth Services uses a variety of different processes, along with well-trained staff, to try to prevent reoffending and help reform the youth.[194] About seventy-seven percent of the offenders that were convicted are dealt with informally, using the above tactics or others (diversion, for example).[195] As such, Missouri has had one of the lowest recidivism rates for youth offenders in the country.[196]

While this area of the law is still developing, it is clear that using restorative justice/ADR tactics with juveniles is positive in some areas and neutral in others. Additionally, there is not a lot of data to show if using ADR tactics here will actually improve recidivism or lower costs or help save time. As the field continues to advance and develop, more data on these metrics will be reported and evaluated, which will help flesh out just how beneficial these restorative justice tactics are and where their weaknesses are, so they can be improved upon. Even with these holes in the data, however, it seems beneficial to implement some types of programs to help meet the goals of the juvenile justice system.

Conclusion

Children are not fully mentally developed and therefore are less culpable than adults.[197] Throughout history, leaders and governments have tried to account for that. More recently, the Supreme Court has changed how juvenile cases are handled and how they can be punished, understanding that they have less culpability. Moving towards a more general use of restorative justice techniques allows the juvenile justice system to meet its goals of rehabilitation as well as fulfill its desire to treat children differently than adults. Based on research of different types of restorative justice processes, it has been found that they help both the victim and the offender feel better about the process and also feel like a fair remedy was reached. There is also some data that points to a lower chance of reoffending after these processes, even though that data is mixed.[198] Alternate dispute resolution might not fit well in the adult criminal justice system, but it fits very well within the juvenile justice system, allowing for the righting of wrongs and, conceivably, actual rehabilitation.

 

[1] Piper Kerman, Orange Is the New Black: My Time in a Women’s Prison 181 (2010).

[2] See 28 U.S.C. § 652(a) (1998) (In federal civil cases, it is required that there is at least one ADR process available for litigants, with no similar requirement in criminal cases).

[3] Stephen Marcus, Goals and Objectives for Alternative Dispute Resolution, 2 J. Perform. Constr. Facil. 2, 5 (1988).

[4] See Cornell, Criminal Procedure, Wex Legal Dictionary/Encyclopedia, https://www.law.cornell.edu/wex/criminal_procedure (last visited 2/22/19) (offering an overview of the criminal procedure process).

[5] What is Restorative Justice?, Centre for Justice and Reconciliation, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-1-what-is-restorative-justice/#sthash.lgkhOptR.dpbs (last visited 2/22/19).

[6] Id.

[7] Youth in the Justice System: An Overview, Juvenile Law Center, https://jlc.org/youth-justice-system-overview (last visited 2/22/19).

[8] Dispute Resolution Processes, Am. Bar Ass’n., https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/ (last visited Jan. 11, 2019).

[9] Marcus, supra note 3.

[10] Id.

[11] The criminal justice system also serves other goals beyond just retribution. This can include deterrence, incapacitation, rehabilitation, and restitution. E.g., Cyndi Banks, Criminal Justice Ethics: Theory and Practice 105 (2004).  However, retribution is still seen as the “focus.” Daryl V. Atkinson, A Revolution of Values in the U.S. Criminal Justice System, Center for American Progress (Feb. 27, 2018), https://www.americanprogress.org/issues/criminal-justice/news/2018/02/27/447225/revolution-values-u-s-criminal-justice-system/.

[12] The Five Objectives of Criminal Laws, Swindle Law Group (Jan. 18, 2014), http://www.swindlelaw.com/2014/01/the-five-objectives-of-criminal-laws/.

[13] C.f. Cornell, supra note 4.

[14] Shirli Kirschner, Criminal Justice and ADR, Mediate (Jan. 2018), https://www.mediate.com/articles/kirschnersbl20180126.cfm.

[15] Id.

[16] E.g. An Inventory and Examination of Restorative Justice Practices for Youth in Illinois, Illinois Criminal Justice Information Authority 3 (Apr. 2013), http://www.icjia.state.il.us/assets/pdf/ResearchReports/InventoryandExaminationofRestorativeJusticePracticesforYouthIllinois_042013.pdf.

[17] Ted Wachtel & Paul McCold, In Pursuit of Paradigm: A Theory of Restorative Justice, International Institute for Restorative Practices (Aug. 12, 2003), https://www.iirp.edu/eforum-archive/in-pursuit-of-paradigm-a-theory-of-restorative-justice.

[18] Steven M. Cox, et al., Juvenile Justice: A Guide to Theory, Policy, and Practice 5 (7th ed. 2011).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 6.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Juvenile Justice History, Ctr. on Juv. and Crim. Just., http://www.cjcj.org/education1/juvenile-justice-history.html (Last visited 1/11/2019).

[30] Id.

[31] Id.

[32] Id.

[33] Cox, supra note 18, at 6.

[34] Juvenile Justice History, supra note 29.

[35] Cox, supra note 18, at 8.

[36] The History of Juvenile Justice, Am. Bar Ass’n., https://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf (last visited Jan. 11, 2019).

[37] Juvenile Justice History, supra note 29.

[38]  Cox, supra note 18, at 9–10.

[39] Id. at 9.

[40] Id. at 9–10.

[41]  Juvenile Justice History, supra note 29.

[42] Id.

[43] Id.

[44] Ira M. Schwartz, Martha W. Steketee & Jeffrey A. Butts, Business as Usual: Juvenile Justice During the 1980s, 5 Notre Dame J.L. Ethics & Pub. Pol’y 377, 378 (1991).

[45] D’lorah L. Hughes, An Overview of the Juvenile Justice and Delinquency Prevention Act and the Valid Court Order Exception, Ark. L. Notes 29, 29–30 (2011).

[46] Id. at 30.

[47] Juvenile Justice and Delinquency Prevention Act, Coalition for Juv. Just., http://www.juvjustice.org/federal-policy/juvenile-justice-and-delinquency-prevention-act (Last visited 1/11/2019).

[48] Id.

[49] Id.

[50] Schwartz, supra note 44, at 381.

[51] Id. at 382–83.

[52] Id at 383.

[53] Juvenile Justice History, supra note 29.

[54] Id.

[55] Id.

[56] Id.

[57] Schwartz, supra note 44, at 378, 382–83.

[58] Cox, supra note 18, at 9–10.

[59] Id.

[60] Barbara Flicker, Standards for Juvenile Justice: A Summary and Analysis 8 (2d ed. 1982) (citing Children in Custody: A Report on the Juvenile Detention and Correctional Facility Census of 1971, U.S. Department of Justice at 3).

[61] Kent v. United States, 383 U.S. 541 (1966).

[62] Id. at 543.

[63] Id. at 546.

[64] Id. at 550.

[65] Id. at 551.

[66] Id.

[67] Id.

[68] Id. at 556.

[69] Id.

[70] Application of Gault, 387 U.S. 1 (1967).

[71] Id. at 4.

[72] Id. at 5.

[73] Id.

[74] Id.

[75] Id. at 6.

[76] Id.

[77] Id.

[78] Id. at 7.

[79] Id. at 9.

[80] Id. at 7–8.

[81] Id. at 8.

[82] Id. at 9.

[83] Id. at 4.

[84] Id. at 28.

[85] Id.

[86] Id. at 31–34.

[87] Id. at 34–42.

[88] Id. at 42–57.

[89] Id. at 57–58.

[90] Id. at 30.

[91] Id. at 16.

[92] In re Winship, 397 U.S. 358 (1970).

[93] Id. at 365.

[94] McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

[95] Id. at 534.

[96] Id at 535.

[97] Id. at 551.

[98] Id. at 541.

[99] Id.

[100] See id. at 543–44.

[101] Id.

[102] Id. at 551.

[103] Id. at 547.

[104] Id.

[105] Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).

[106] Stanford v. Kentucky, 492 U.S. 361, 380 (1989).

[107] Roper v. Simmons, 543 U.S. 551 (2005).

[108] Id. at 556.

[109] Id. at 559.

[110] Id.

[111] Id.

[112] Id.

[113] Id. at 560.

[114] Id. at 564.

[115] Id. at 567.

[116] Id. at 569.

[117] Id.

[118] Id. at 570.

[119] Id.

[120] Miller v. Alabama, 567 U.S. 460 (2012).

[121] Id. at 465.

[122] Id.

[123] Id. at 466.

[124] Id. at 471.

[125] Id. at 474.

[126] Id. at 477.

[127] Id. at 479.

[128] Roper, 543 U.S. at 567.

[129] McKeiver, 403 U.S. at 547.

[130] Nichole Shoener, Can Alternative Dispute Resolution Fix the Juvenile Justice System?, LegalMatch, (last visited Feb. 23, 2019), https://legalmatch.typepad.com/criminallaw/2014/11/can-alternative-dispute-resolution-fix-the-juvenile-justice-system.html.

[131] See discussion infra Part II.B.

[132] What is Restorative Justice?, supra note 5.

[133] Id.

[134] Id.

[135] Kirschner, supra note 14.

[136] Id.

[137] See discussion infra Part II.B.

[138] Kirschner, supra note 14.

[139] Id.

[140] Id.

[141] Youth Justice Conferencing, NSW Government, (last accessed Feb. 23, 2019),

http://www.juvenile.justice.nsw.gov.au/Pages/Juvenile%20Justice/conferencing/conferencing.aspx.

[142] Id.

[143]  Kirschner, supra note 14.

[144]  Youth Justice Conferencing, supra note 141.

[145] Id.

[146] Kirschner, supra note 14.

[147] Id.

[148] Youth Justice Conferencing, supra note 141.

[149] Kirschner, supra note 14.

[150] Estelle Zinsstag, et al., Conferencing: A Way Forward for Restorative Justice in Europe, European Forum For Restorative Justice (2011), http://www.euforumrj.org/assets/upload/Final_report_conferencing_revised_version_June_2012.pdf.

[151] Masahiro Suzuki & William Wood, Is Restorative Justice Conferencing Appropriate for Youth Offenders?, 18 Criminology & Criminal Justice 450, 450 (2018).

[152] Zinsstag, supra note 150.

[153] Id.

[154] Kirschner, supra note 14; Heino Lilles, Circle Sentencing: Part of the Restorative Justice Continuum, International institute for Restorative Practices (Aug. 9, 2002), https://www.iirp.edu/eforum-archive/circle-sentencing-part-of-the-restorative-justice-continuum.

[155] Kirschner, supra note 14.

[156] Lilles, supra note 154.

[157] Kirschner, supra note 14.

[158] Lilles, supra note 154.

[159] Id.

[160] Id.

[161] Kirschner, supra note 14.

[162] Id.

[163] Victim-Offender Mediation, Centre for Justice and Reconciliation, (last visited Feb. 23, 2019), http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-3-programs/victim-offender-mediation/#sthash.OtmJyMpL.dpbs.

[164] Kirschner, supra note 14.

[165] Id.

[166] Id.

[167] Id.

[168] Victim-Offender Mediation, supra note 163.

[169] Shoener, supra note 130.

[170] Juvenile Drug Courts, Nat’l Inst. of Justice, (last visited Feb. 23, 2019), https://www.crimesolutions.gov/PracticeDetails.aspx?ID=14).

[171] Id.

[172] Shoener, supra note 130.

[173] Juvenile Drug Courts, supra note 170.

[174] Id.

[175] Id.

[176] Shoener, supra note 130.

[177] Juvenile Drug Courts, supra note 170.

[178] For a more through discussion of this science and the legal implications see, e.g., Beatriz Luna, The Relevance of Immaturities in the Juvenile Brain to Culpability and Rehabilitation, 63 Hastings L. J. 1469 (2012); Morgan Tyler, Understanding the Adolescent Brain and Legal Culpability, Child Law Practice Today (2018); Adolescence, Brain Development, and Legal Culpability, Am. Bar Ass’n. (Jan. 2004), https://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_Adolescence.pdf;.

[179] Multi-Option ADR Project Evaluation Report, San Mateo County Superior Court 65 (Jan. 2009), https://www.sanmateocourt.org/documents/adr/2007_2008_evaluation_report.pdf.

[180] Id. at 69.

[181] Id.

[182] Id. at 72.

[183] Id. at 73.

[184] Id.

[185] Id. at 74.

[186] Id.

[187] Id. at 75.

[188] Suzuki, supra note 151.

[189] Id.

[190] Id.

[191] Id.

[192] Id.

[193] Shoener, supra note 130.

[194] The Approach, The Missouri Approach, (last visited Feb. 22, 2019) http://missouriapproach.org/approach/.

[195] Beth Huebner, Appendix B: The Missouri Model: A Critical State of Knowledge, in Reforming Juvenile Justice: A Developmental Approach 415 (Richard J. Bonnie et al. eds., 2013).

[196] Shoener, supra note 130.

[197] See, e.g., Adolescence, Brain Development, and Legal Culpability, Am. Bar Ass’n. (Jan. 2004), https://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_Adolescence.pdf.

[198] Suzuki, supra note 151.