“The problems of juvenile delinquency and violent youth crime cannot be meaningfully addressed until [we] refocus on the underlying causes of juvenile delinquency and provide our children with guidance instead of punishment.”6
The current juvenile justice system has strayed from the original mission and instead focuses on retributive-based justice system or punitive sentencing and treatment of juvenile delinquents.7 Over 100 years ago, the juvenile court system was created upon a rehabilitative-based juvenile justice system. The goal was to treat the delinquency and rehabilitate juveniles because our country realized that youth are fundamentally and categorically different than adults.8 Broad discretion was given to juvenile court judges upon the doctrine of parens patraie to protect rather than punish young offenders.9 The original juvenile justice system’s goal was treatment rather than punishment by using methods such as confidentiality of juvenile records, individualized treatment of juveniles through informal court procedures and separate incarceration of juveniles from adults.10
Another problem is the lack of attention for less serious offenses by young offenders. Typically the less serious crimes are dismissed. Due to limited state funding and resources juvenile courts have to conserve their scarce resources for the most serious cases.11 Unfortunately, these serious cases typically arrive after a long chain of prior arrests for less serious charges, for which the court imposed limited consequences on the juvenile in order to conserve resources.12 A study by the U.S. Department of Justice found that very young juvenile delinquents have a greater percentage of serious, violent and repeated pattern of offenses than older onset delinquents.13 Thus, the earlier a juvenile is involved in court, the greater his or her risk of returning to court. In other words, early court involvement combined with a lack of meaningful intervention can put the youth on the “pathway to serious, violent, and chronic offending.”14 Young offenders are not held accountable for their less serious offenses at the time when the problems are apparent and courts have the authority to affect change.15 The juvenile justice system fails at the goal of prevention because it fails to intervene before these problem behaviors become ingrained.16 Instead of a wake-up call, the juvenile gets the message that the offense was no big deal.17
According to the National Center for Juvenile Justice, juvenile courts have an opportunity to intervene in the lives of a large percentage of youth. Early intervention may halt the juvenile’s court career and reduce the drain on the court’s limited resources.18 However, evidence suggests that retributive-based measures, such as removing troubled and delinquent children from the home and placing them in custody, is expensive and often less effective than community-based supervision and treatment.19 In addition, juveniles in custody may emerge with very little competency, less prepared for adult life and reintegration into the community, and thus more likely to recidivate.20
Additionally, other trends in the juvenile justice system, such as lowering the age of accountability and automatic transfers to the adult criminal system, have not proven effective.21 Public safety is not improved by adult incarceration or incarceration as a juvenile because, in both circumstances, the system has failed to divert children from a life of crime.22
Using a retributive-based juvenile justice system is not accomplishing the goals of public safety, offender accountability and victim restoration. To return to the goal of the original juvenile justice system to rehabilitate our youth, the focus should be on early intervention of young offenders by community-based diversionary programs that focus on offender accountability and reintegration into the community.
THE SOLUTION: RETURNING JUSTICE TO THE COMMUNITY
The solution suggested by reform groups like the National Juvenile Justice Network is to “increase access to community-based services that work to ameliorate youth’s problems and attend to youth development.”23 A restorative justice solution requires placing juvenile justice back in the hands of the communities through the implementation and integration of community-based, restorative justice programs. Restorative justice proponents recommend early intervention and treatment programs in schools, in courthouses and in our community to derail the “school to prison pipeline” that has become a buzz phrase in our education system, criminal justice system and our communities. Restorative justice can teach students how to be productive citizens, reduce recidivism rates and create safer communities.
WHAT IS RESTORATIVE JUSTICE?
Restorative justice treats crime first as a conflict between individuals resulting in injuries to victims, communities and the offenders themselves, and second as a law-breaking offense against the state.24 Restorative justice seeks to restore the victim and reintegrate the offender into the community.25 One definition of restorative justice according to criminologist Tony Marshall is: “a process whereby all the parties with a stake in a particular offence (sic) come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”26 Another definition, according to Howard Zehr, is a process that involves, to the extent possible, those who have a stake in a specific offense and to collectively identify and address the harms, needs and obligations, in order to heal and put things as right as possible.27 The stakeholders include the victim and offender, but also the offender’s family, the victim’s supporters and the community harmed by the crime.28
The advantages of restorative justice may positively impact the victim, the offender and the community in any of five ways. First, restorative justice focuses on the offender by addressing offender accountability, treatment and reintegration. Offender accountability is encouraged through processes that address the consequences of the criminal behavior to the victim and the community. The offender is involved directly in deciding how to make amends for his or her crimes, which may be more effective in internalizing the effects and consequences of their actions.29 The restorative process uses “re-integrative shaming” to en-courage empathy and personal responsibility and reintegration into the community.30
Second, restorative justice focuses on victim restoration.31 In the traditional justice system, victims are largely ignored and the victim may even feel as if the offender “got away with it.”32 Restorative justice is victim-centered and gives the victim a voice in the process.33 It allows the victim to confront the offender face-to-face, convey their outrage and pain caused by the offense.34 The victim can begin to heal from the harm caused by the juvenile by receiving an apology from the offender and some kind of reparation for the harm.35
Third, restorative justice encourages parental participation and family restoration.36 The process respects the integrity of the family unit. Restorative justice processes such as VOM or family group conferencing are designed to empower the family to help solve their own problems.37
Fourth, restorative justice focuses on prevention, treatment and competency development programs for youth. By encouraging personal transformation, the process can bring out the underlying harms and factors that contributed to the juvenile’s behavior including family breakdown, addictions and poor interpersonal skills.38 Healing can begin by referring the juvenile and his or her parents to appropriate treatment and competency development programs.39 The goal is to get the offender matched with community resources to empower the juvenile to make their own way out of the destructive cycle of delinquency.40
Fifth, restorative justice focuses on public safety by teaching the young offender the skills they need to live peacefully in the future, while also insisting that they accept responsibility for their past.41 Through collaboration with the community, the offender is reintegrated by appropriate community service and reintegration programs.42
The success of the restorative justice is ultimately measured by the improved safety of the community.43 The measures of success include 1) recidivism rates, which measure the ability to deter juveniles from future offenses; 2) juvenile accountability by completing community service or paying victim restitution; and 3) competency development by completion of GED, enrollment in higher education or obtaining gainful employment.
Community-based restorative justice programs, such as VOM, used as an intervention or diversionary programs, can impact recidivism. VOM offers a unique opportunity to develop the competencies of the offender. The VOM offers the juvenile the opportunity to take responsibility and be held accountable for his or her actions in a confidential, conflict resolution framework that balances the needs and responsibilities of the victims, the offenders and the community. The VOM involves the victim, the juvenile offender and both parties’ support persons meeting face-to-face in a structured, secure environment with a trained, neutral mediator acting as a facilitator. The goal is to bring restoration, healing, reconciliation and, if possible, negotiate restitution. Reintegrating the offender into the community can be accomplished during the process because the victim and the offender collaborate to develop ways to repair the damage caused by the offense and to provide consequences for the crime.44
CE PROGRAMS AROUND AMERICA
One approach to juvenile justice reform is at the local level or a grass-roots approach. Indiana has several successful restorative justice programs because of the discretion which the Indiana legislature gave to the local courts to implement restorative justice process and outcomes in the juvenile justice system. For example, the purpose clause for Indiana’s delinquency proceedings recognizes the importance of family and children and the state’s role in protection and strengthening of that family unit.45 The code also states the juvenile justice system should treat children as “persons in need of care, protection, treatment and rehabilitation” while enforcing the accountability of children and parents. Specifically, the Indiana Code Section 33-14-10-5, states that the victim must be offered the opportunity to participate in a victim-offender mediation reconciliation program, if one exists.46
The impact of using victim-offender mediation reconciliation programs was measured by the Hudson Institute Crime Control Policy Center which held a restorative justice experiment.47 The title of the experiment’s report was “Returning Justice to the Community” because the participation with the community in rehabilitation of the offender was the focus of the experiment. The VOM reconciliation program was led by police officers trained with REAL Justice and were referred to as “restorative justice conferences.”48 Procedurally it was considered a diversion program within the juvenile division of the Marion Superior Court for first-time appearances by young offenders (14 years and younger).49 The participants included the juvenile offender, the parent, other family members and supporters,50 the victim and their supporters and the conference coordinator. The agenda of the conference included the following: 1) the coordinator guides the juvenile through a series of questions to help the youth accept responsibility for the behavior and understand the impact to the victim, their family and the community; 2) the victim gives an impact statement and is given opportunity to ask the juvenile questions; 3) the supporters are given the opportunity to voice how the offense affected them; 4) the group begins to work out an agreement for the juvenile to repair the harm, 5) the juvenile voluntarily apologizes to the victim and the group; 6) the juvenile is asked whether the reparation agreement is fair and the victim is asked whether they are satisfied with the agreement.51
The conclusion of the experiment was that “conferences may offer a more effective intervention in early offending.”52 The results showed that for youths successfully completing their diversion program, there was a statistically significant reduction in re-arrest after six months, with similar results after 12 months.53 The Hudson Institute Experiment was relatively simple to implement, fairly inexpensive to operate and very successful.
Pennsylvania has been successful in a top-down or legislatively mandated integration of restorative justice principles into their juvenile justice system.54 In 1995, the legislature of Pennsylvania amended the purpose clause of the Juvenile Act to reflect the principles of restorative justice and a balanced approach to juvenile probation.55 Act 1995-33 or Act 33 amended the purpose clause to be interpreted and construed to achieve three broad goals: 1) the protection of the community, 2) the imposition of accountability for offenses committed and 3) the development of competencies to enable children to become responsible and productive members of the community.56 In 1996, a statewide policy forum was held called the “Community, Victim and Offender: Changing Roles in Juvenile Justice” to introduce the new juvenile justice philosophy to practitioners and policymakers.57 Funding was made available to train judges, probation officers, district attorneys, public defenders and victim advocates.58 Further in 1997, victim restoration, community protection and youth redemption was introduced into the Juvenile Act’s mission statement by the Juvenile Justice and Delinquency Prevention Committee (JJDPC) of the Pennsylvania Commission on Crime and Delinquency.59 In 2003, a benchbook was issued by the Juvenile Court Judges’ Commission (JCJC) to explore what restorative justice entails for Pennsylvania judges on and off the bench.60
In Pennsylvania, the judge’s role in implementation of the restorative justice programs was essential for success. The legislature provided statutory guidelines, procedural protections and programs to assist in the implementation. Court rules required the judges to consider victim impact statements in deciding disposition, a restitution be identified, quantified and collected in timely manner and the disposition order to give a payment schedule to the juvenile.61
The JCJC provided a benchbook of strategies and best practices guidelines for judges to order restorative justice interventions. The judge was encouraged to write creative court orders focusing on juvenile accountability including: submission of written apologies to victims, direct services performed for the victims, payment of fees to fund victim restitution programs, community service programs chosen by the victim which allow the offender to “earn” the fee, participation in victim and crime impact awareness classes and work on crime-scene clean-up crews.62 The benchbook states that one of the roles of the judge is to be the “community energizer and enabler” because “the principles of balanced and restorative justice require the community to play a larger role throughout the juvenile justice process.63
In Bethlehem, Penn., an experiment was held over an 18-month period for first-time juvenile offenders arrested for select misdemeanor and summary offenses.64 The diversionary restorative justice program was a victim-offender mediation facilitated by police trained by REAL Justice. The goal of program was “to encourage young offenders to achieve empathy towards their victims and take responsibility for their crimes, allow victims to move toward forgiveness and healing and empower citizens to appropriately address their own local problems.” The effectiveness was measured in three categories: community protection, accountability and competency development. In terms of community protection 87 percent of cases were closed without adjudication for new offense, 86 percent of cases were closed without a finding of a serious probation violation during the period of supervision.65 In accountability: 92 percent completed all community service assigned and 84 percent paid all restitution imposed by the time of case-closing. In competency development: 77 percent were gainfully occupied, whether by attending school, working on GED or employed when their cases were closed.66
RESTORATIVE JUSTICE PROGRAMS AVAILABLE IN OKLAHOMA
In Oklahoma there are at least two restorative justice programs available for immediate implementation by communities: peer mediation in the education system and VOM in the juvenile justice system. Both programs are available for immediate referrals through local early settlement centers, the ADR system’s local, community-based mediation centers. The Office of the City Attorney of the City of Norman currently uses VOM as a diversion program by referring all citizen-signed complaints to Norman’s Early Settlement program. Integration of this program into the Office of the City Attorney can be used as a model for other communities in Oklahoma. Integration of the Early Settlement VOM program into the local community’s juvenile justice system has been impeded by barriers to implementation, including but not limited to, 1) a lack of education on the program’s availability and the benefits of restorative justice, and 2) a perception by district attorneys (DAs), judges, and attorneys that the mediation program is run by individuals who have no experience in working in the real world of criminal justice and who are likely to just get in the way.67
Peer mediation programs can be used in schools to teach students interpersonal conflict resolution skills. The OBA worked closely with Early Settlement to create the curriculum for the Oklahoma peer mediation program. In peer mediation, two trained student mediators sit down face-to-face with two students in conflict. The peer mediators facilitate a resolution to the conflict which can be reduced to a mutually acceptable agreement. More information on this program is available from Phil Johnson, the peer mediation specialist and director of Early Settlement-Central,68 and Jane McConnell, the OBA law-related education coordinator.
USING VOM IN YOUR COMMUNITY
Oklahoma is one of the few states in the country with legislative support for victim-offender mediation programs to be used for community-based delinquency prevention and diversion programs.69 VOM can be implemented at all levels from the juvenile court judge, the DA, school administrators, law enforcement or by community members prior to filing a complaint against the juvenile. The referrals to Early Settlement can be sent as a diversion program, informal probation, probation or as a part of non-secure custody plans.
Restorative justice programs could be used in the majority of cases where a juvenile has committed a crime that directly impacts the victim, but would not be considered serious enough to require custody in a secure detention facility. For example, in 2011, the majority (59 percent) of cases referred to OJA were handled without the DA filing a petition to send the juvenile to adjudication.70 If no petition is filed, the assistant district attorney will decide to either to dismiss the case, divert the case by referring to a community-based program or to enter into informal probation. Informal probation is where the district attorney decides to enter into an agreement with the juvenile in which further adverse action is contingent upon whether the juvenile successfully follows and agreed upon program. In 2011, 13 percent of cases where a petition was filed were dismissed.
Even when the case is not dismissed, the juvenile is adjudicated as a delinquent, mediation may be ordered by the court as part of the treatment plan. The adjudicated juvenile delinquent is typically made a ward of the court at the disposition hearing and remains in the parent’s custody.71
USING THE OFFICE OF THE CITY ATTORNEY IN NORMAN AS A RESTORATIVE JUSTICE MODEL
The city attorney’s office in Norman uses a variety of programs to intervene in the life of the juvenile offender. The successful integration of Early Settlement and other restorative justice programs into the city attorney’s office by the City of Norman can be a model for other cities and counties. Since 1988 Norman’s Office of the City Attorney has fully funded and used Early Settlement to schedule VOM for citizen-signed misdemeanor criminal complaints, including but not limited to those involving juvenile offenders. The City Attorney’s Office reviews all incoming citizen-signed criminal complaints and sends referrals to Early Settlement based upon the potential continued contact between the parties, possibility of restitution, resolution of the disputed issues and overall benefit to the community. Although the purpose of the VOM program is to reduce the number of criminal charges filed within the municipal court system, cases can be also be referred to the Norman program by other City departments, police officers, attorneys, apartment managers, schools, neighborhood associations, real estate agents, etc. In fiscal year 2013, more than 40 percent of the referrals received to the program were found to be appropriate for actual mediations and scheduled with the parties.72 Of the mediations held in the same fiscal year, greater than 84 percent settle. The greatest advantage of agreements made in mediation is the durability because “people keep agreements they make themselves.”73
In 1992, Norman’s office of the city attorney decided to become more proactive in reducing juvenile crime by creating a juvenile offender program. In an interview Rick Knighton, assistant city attorney, explained an agreement was made with the district attorney to allow the Norman municipal court to adjudicate misdemeanor juvenile offenses.74 In the past the district court was forced to conserve resources for the most serious juvenile offenses. Typically petitions were not filed for misdemeanors committed by a juvenile; instead the Juvenile Services Unit handled the case by sending a letter to the parent or guardian of the juvenile offender. The goal of the juvenile offender program was to create consequences for the less serious crime and create individual accountability for the juvenile.
The goal of VOM to create offender accountability fit well into the goal of Norman’s juvenile offender program to reduce juvenile crime. As Mr. Knighton, explained, if a violation by a juvenile is filed and proven in municipal court, the juvenile offender (or more likely the parent) will have to pay the city a fine. The problem behavior of the juvenile will not likely improve as a result of the court process and the complaining witness (victim) will receive no reparation for the damage caused by the violation. It is possible the court process will also further damage the relationship between the juvenile and the victim. Further complaints may be filed if the two parties are likely to have future contact to resolve further issues.
VOM can be used to resolve the underlying issues between the juvenile and victim, but also can empower the parties to resolve future disputes through collaboration. The mediation process empowers the victim to tell the juvenile about the impact of the crime and creates an opportunity for the two parties to collaborate on creating a resolution for the impact. In addition to creating a consequence for the crime, the mediation process also gives the juvenile offender an opportunity to be heard. In an interview Jayme Rowe, Director of Early Settlement’s Norman program, explained sometimes the child’s voice gets lost at home or at school and the mediation is the only place where people listen. Even if there is no agreement reached, the impact of the mediation process can be satisfying for both the victim and the offender.
Norman’s juvenile offender program generally begins with a citation or complaint alleging a violation of city ordinance submitted to the court for consideration by the city attorney’s office, a citizen, law enforcement or school administrator. The case is screened by the assistant city attorney handling the complaint to determine whether the issue involved is appropriate for VOM. If a referral is made to the Early Settlement program by the assistant city attorney or other entity, the case is screened a second time by the program director. The mediation process is completely voluntary. All involved parties must be contacted, interviewed and counseled about the rules of confidentiality before scheduling the case for VOM. The goal of the screening process is to ensure the safety of all parties involved in the mediation and ensure every case is appropriate for VOM. In order to protect the volunteer mediators, the point of contact for every scheduled VOM is the program director.
Procedurally, by sending complaints to Early Settlement rather than through the formal court process, the City of Norman is not a party to the mediation. However, the city attorney will exercise the option to not file the criminal charge in municipal court in consideration of any agreement or resolution reached between the complaining witness (victim) and juvenile offender during mediation. Although, if the juvenile does not follow the agreement then it is possible that the charge could be filed as a consequence.
By statute, the mediation process is completely voluntary and confidential.76 If the of-fender declines to participate in mediation or the mediation is unsuccessful, the cooperation (or lack of cooperation) cannot be used against the offender. The city attorney cannot use the outcome of the mediation against the juvenile when filing a criminal charge.
If VOM is refused or unsuccessful, then the assistant city attorney handling the case will meet with the juvenile at a pre-arraignment conference with their parent or guardian to determine the appropriate course of action to address the situation. The Norman juvenile offender program utilizes restorative justice principals by requiring the juvenile to write a letter of apology, perform community service or attend one of the programs developed or funded by the city attorney’s office.77 In fact, the goal of community restoration is facilitated by a community services coordinator who attends the pre-arraignment conference.
The success of the juvenile offender program and use of Early Settlement is directly related to the involvement by the community, including the police, school administration and the court system. To achieve community support, training programs are included at different city agencies and programs. Police training includes a presentation on the Early Settlement’s VOM program. The police carry Early Settlement brochures to allow citizens to submit cases di-rectly to the program. The court clerks are trained on Early Settlement and often recommend citizens to refer cases to the program. The public schools are also aware of the juvenile offender program and may send referrals to the Office of the City Attorney.
Another important element of the success of the Norman Early Settlement program is the volunteer mediators. Jayme Rowe, the director of Early Settlement-Norman, recruits volunteer mediators from the community with specialized education in law, education, counseling or experience with juveniles. The volunteer mediators are rigorously trained and certified through the Oklahoma Supreme Court. However, the effective certified volunteer mediator does not need to be an expert on the juvenile justice system in order to be successful. For example, Jeri Stroup has been a certified volunteer mediator of the Norman program for over six years. Jeri works at the Department of Human Services, as an administrative field analyst in the adult and family services division.
OVERCOMING BARRIERS TO INTEGRATION OF VOM IN YOUR COMMUNITY
As stated before, integration of the Early Settlement’s VOM program has been nominal due to a combination of community apathy and community resistance. Barriers to integration included lack of education and a perception that the mediation program is staffed by inexperienced do-gooders. Training programs targeted at community leaders can combat some of the barriers. However, the effectiveness of the program will be directly related to the community involvement in the program. Each Early Settlement program will require the support and direct involvement of the community to recruit appropriately experienced volunteers, create a referral process, interview the juveniles, victims and families in order to screen referrals for appropriate VOM cases, schedule the VOM and send the agreements back to the appropriate agency.
To create community support and combat barriers to implementation Dr. Mark Umbreit, director of the Center for Restorative Justice and Peacemaking, suggests various strategies. One strategy is to create an advisory committee from the community stakeholders to assist in the integration of the program by giving feedback and guidance. In an interview, Jane McConnell at the OBA stated that the advisory committee should include leadership from the county bar associations and local judges.78 Local attorneys and judges are at a unique position in the community to be used to assess, coordinate and evaluate the reform efforts.
Another strategy Dr. Umbreit suggests for overcoming barriers is to make educational presentations on the program to community stakeholders. Presentations should be made to the DA, defense attorneys, judges, probation officers, school administrators, law enforcement and other agencies to explain the program and the potential impact on the juvenile offender and the community. The best presentations would be brief and include testimony from a juvenile offender, parent or victim of a juvenile offender who has participated in the VOM process.
Volunteers are the backbone of Early Settlement programs. The recruitment and participation of the right volunteers will affect the success of the integration and results of Early Settlement programs. The community stakeholders will need to identify the right volunteer with the experience, the attitude and professionalism necessary. After recruitment, Early Settlement will provide the training necessary to become certified as a volunteer mediator.
Guymon has a unique opportunity to begin reform. A local certified volunteer mediator, Steve Macias, has spent two decades working with youth in trouble and their families. Mr. Macias was educated in Guymon and moved to Texas in 1989. He worked in the Texas Youth Commission and as a caseworker, he created a victim impact panel at the Crockett State School in Crockett, Texas in 1994. Steve Macias was trained and certified in East Texas as a conflict resolution mediator, including training on VOM. In 2007, he returned to Guymon and has been trained by Early Settlement to conduct mediations for small claims court and family and divorce court. Early Settlement Northwest plans on taking advantage of his experience and expertise as a VOM volunteer mediator.
In an interview with Mr. Macias, he explained that one of the obstacles to reducing juvenile delinquency is that the delinquent attitude has become generational and is ingrained in the family beliefs. If a family believes that “the system” is corrupt, lazy, careless or prejudiced, then the child grows up hearing, “the system is against us so it is OK to go against it.” Steve Macias has found that when the family experiences effective mediations, there is an opening during that dialogue to change their views of “the system.” During a successful mediation, not only will the offender be affected positively by individual accountability, the parents are more likely to adjust their worldview and give positive messages to their children at home. Steve cautions, “If our focus is specifically on the individual, when we think of reducing recidivism, we are overlooking one of the strongest influences, family!”
Creating safe communities and decreasing recidivism in juveniles requires early intervention for very young offenders and prevention programs. Research shows community-based programs with effective, accountability based, rehabilitative programs and services can positively impact young offenders (juveniles between ages seven and 12), who are most at risk to become serious, violent and chronic offenders.79 These programs would be useful for all the cases where a juvenile is not taken into custody, such as when a petition is not filed or when probation is ordered after adjudication.
In every county in Oklahoma community-based Early Settlement programs are already currently available to attorneys, judges, educators and community leaders. The programs just need to be utilized. One program with roots in the restorative justice movement, VOM may have the most impact on the very young offenders. VOM aims to hold juveniles accountable for their delinquent acts, and rehabilitate the juvenile offender by focusing on repairing the harm to the victim, providing consequences for the crime and reintegrating the offender into the community. Integration of intervention or diversionary programs using referrals to Early Settlement VOM should be strategized by community stakeholders, including, but not limited to, local OJA representatives, assistant district attorneys, defense attorneys, judges, probation officers, school administrators, law enforcement and other government and private agencies involved in juvenile justice in the community.80
Oklahoma’s legislative and administrative branches have initiated steps toward reform of the juvenile justice system. Changes to the juvenile justice code, process and system are likely to follow after the report from the Juvenile Justice Reform Committee is submitted, sometime in early 2014. Local communities may be impacted by changes in the code and possible streamlining of government programs. The participation of local community stakeholders in this reform movement could influence the impending reform to meet the best interest of the children in their community which find themselves in trouble with the law. Restorative justice programs are often low-cost, community-based, and research across the nation shows the programs decrease recidivism. Integration of restorative justice puts justice in the hands of the community, while achieving the goals of cost-savings and increased public safety.
1. Letter from Mary Fallin, Oklahoma Governor, to the Honorable Speaker of the House and Members of the House of Representatives, (April 29, 2013). Available at http://votesmart.org/static/vetotext/ 44021.pdf
. House Joint Resolution 1023 was vetoed on April 29, 2013 because it was not consistent with Governor’s commitment to reducing the size and cost of state government. Mary Fallin, veto letter http://votesmart.org/static/vetotext/44021.pdf
2. 30 Okla.Reg.1492 (June 18, 2013). Executive order 2013-18, establishes the Juvenile Justice Reform Committee.
3. Id. Report is due to the Governor, President Pro Tempore of the Senate and the Speaker of the House and committee shall sunset upon issuance of the final report
4. Id. (emphasis added)
5. Oklahoma. Stat. tit. 12 §1801-6 (1997) ADR system which was authorized (1983) and funded (1985) by the state legislature through the Oklahoma Dispute Resolution Act, 12 O.S. Supp. 1997, §1801 et seq., There are 12 community-based mediation centers, referred to as Early Settlement, administered and supervised by the Administrative Director of the Courts (ADC) through the ADR System Director, with ongoing input of the Dispute Resolution Advisory Board. “The Legislature is aware of the fact that many disputes arise between citizens of this state which are of small social or economic magnitude and can be both costly and time consuming if resolved through a formal judicial proceeding. Many times such disputes can be resolved in a fair and equitable manner through less formal proceedings. Such proceedings can also help alleviate the backlog of cases which burden the judicial system in this state. It is therefore the purpose of this act to provide to all citizens of this state convenient access to dispute resolution proceedings which are fair, effective, inexpensive, and expeditious.”
6. Jacqueline Cuncannan, “Only When They’re Bad: The Rights and Responsibilities of Our Children,” 51 Wash. U. J. Urb. & Contemp. L. 273, 301(1997). See also, Id. at 300 “Given the available information on child’s cognitive development, this trend is also morally unsound. Furthermore, the presumptions that society is willing to make regarding a delinquent child’s legal capacity are not consistent with the presumptions made regarding non-delinquent children.” See also, Cynthia Conward, “The Juvenile Justice System: Not Necessarily in the Best Interests of Children,” 33 New Eng. L. Rev. 39, 49 (1998) “Florida was one of the first states to inaugurate automatic transfer policies. Researchers, however, have found that by every scientific measure that they used, re-offending was greater among juveniles who were transferred to adult court as opposed to those charged with similar crimes in juvenile justice system….lead them to conclude that that automatic transfer in FL has had little deterrent value nor has it enhanced public safety.”
7. “The Problem and the Solution,” The National Juvenile Justice Network, (2001), Available at www.njjn.org/our-work/the-problem-and-the-solution
8. Cynthia Conward, “The Juvenile Justice System: Not Necessarily in the Best Interests of Children,” 33 New Eng. L. Rev. 39, 41-42 (1998) (“Progressive reformers created the first Juvenile Court in Chicago in 1899. It was the creation of progressive reformers who viewed the wayward youth as a product of their bad environment and the failure of the family. Reforms were initiated in order to give young lawbreakers a combination of punishment, treatment and counseling with the aim of helping youths reconstruct their lives”): Id. at 49 (“Youth crime is not exclusively the offender’s fault. Offenses by the young also represent a failure of family, school and society, each of which shares in the responsibilities for the development of America’s youth.”); Id. at 51 (“The current movement of juvenile law asserts a return to policies which place juveniles in the criminal justice system and adult prisons, with punishment taking priority over prevention, treatment and rehabilitation. Traditional notions of individualized dispositions based on the best interests of the juvenile are being diminished by interests in punishing the criminal behavior”).
10. Ester Mosak, “Sentencing Alternatives for Youth Courts: The Restorative Justice Approach,” Technical Assistance Bulletin No. 28. American Bar Association, Division for Public Education.
11. Lawrence Sherman, “Defiance, Deterrence, and Irrelevance: A Theory of the Criminal Sanction,” 30 J. Res. in Crime & Delinquency 445,473 (1993).
12. Nancy Lucas, “Rehabilitation, Prevention and Transformation: Victim-Offender Mediation for First Time Non Violent Youthful Offenders,” 29 Hofstra L. Rev. 1365, 1366 (2001) (“Juveniles who are discharged or placed on probation are at greater risk for future incarceration because they are rarely provided the access to services that will help to prevent them from re-offending”).
13. Id. See also Edmund F. McGarrell, “Restorative Justice Conferences as an Early Response to Young Offenders,” Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Bulletin (August 2001).
14. Id. (“The risk of becoming a serious offender is two to three times higher for child delinquents ages 7 to 12 than for youth whose onset of delinquency is later. Because very young offenders are more likely to reoffend and to process to serious delinquency, effective early intervention is crucial. This bulletin features a promising form of such early intervention: restorative justice conferencing”).
15. Howard N. Snyder, Rachele C. Espiritu, David Huizinga, Rolf Loeber & David Petechuk, “Prevalence and Development of Child Delinquency,” Child Delinquency Bulletin Series (March 2003) (“Figure 2, analysis of court careers and offense patterns of nearly 70,000 youth in Phoenix AZ and State of UT” and “Figure 3: Very Young Offenders Have a Greater Percentage of Serious, Violent and Chronic Careers Than Older Onset Delinquents.”), http://www.ncjrs.gov/pdffiles1/ojjdp/193411.pdf; see also, Howard Snyder, “Court Careers of Juvenile Offenders,” iii (National Center for Juvenile Justice, 1988) (“Early intervention in a young offender’s juvenile court career may not only halt that career but also help reduce the drain on limited court resources each time a juvenile is referred to the court.”) Available at http://www.ncjjservehttp.org/NCJJwebsite/pdf/Howardpubs/Snyder_Court_Careers_1988.pdf
16. Rolf Loeber, David P. Farrington, & David Petechuk, “Child Delinquency: Early Intervention and Prevention,” Child Delinquency Bulletin Series (May 2003) at 4.
17. Id. at 12. “Failure to intervene in a meaningful way early in the youth’s offense history fails to express community outrage and sends mixed messages about the behavior to the offending youth.” Id.
19. Richard A. Medel. “No Place for Kids, The Case for Reducing Juvenile Incarceration,” Annie E. Casey Foundation (2011), Available at www.Aecf.org/noplaceforkids.
21. Jacqueline Cuncannan, “Only When They’re Bad: The Rights and Responsibilities of Our Children,” 51 Wash. U. J. Urb. & Contemp. L. 273, 300, (1997) “Given the available information on child’s cognitive development, this trend is also morally unsound. Furthermore, the presumptions that society is willing to make regarding a delinquent child’s legal capacity are not consistent with the presumptions made regarding non-delinquent children.” See also, Cynthia Conward, “The Juvenile Justice System: Not Necessarily in the Best Interests of Children,” 33 New Eng. L. Rev. 39, 49 (1998) “Florida was one of the first states to inaugurate automatic transfer policies. Researchers, however, have found that by every scientific measure that they used, re-offending was greater among juveniles who were transferred to adult court as opposed to those charged with similar crimes in juvenile justice system….lead them to conclude that that automatic transfer in FL has had little deterrent value nor has it enhanced public safety.” Id.
22. Lucas, supra note xii, at 1366 (“Youthful offenders who are incarcerated routinely emerge less prepared for adult life and are likely to recidivate”)
23. “The Problem and the Solution,” The National Juvenile Justice Network, (2001), Available at www.njjn.org/our-work/the-problem-and-the-solution
24. Lucas, supra note xii at 1371. Mary Ellen Reimund, “The Law and Restorative Justice: Friend or Foe? A Systemic Look at the Legal Issues in Restorative Justice,” 53 Drake L. Rev. 667, 670 (2005) (“Restorative justice looks at crime as violation of people and of interpersonal relationships. With the violation there is an obligation to right the wrong and repair the relationship. Restorative justice addresses victim’s harms and needs, holds the offender accountable to right those harms and involves the victim, offenders and communities in the process”).
25. Id. at 668 (“Restorative justice takes a victim-centered approach to crime”).
26. Daniel van Ness, “Introducing Restorative Justice,” Restorative Justice for Juveniles (Allison Morris & Gabrielle Maxwell ed., Hart Publishing 2003).
27. Tina S. Ikpa, “Balancing Restorative Justice Principles and Due Process Rights in Order to Reform the Criminal Justice System,” 24 Wash. U. J.L. && Pol’Y 301, 302 (2007).
30. Id. at n. 12; see also Edmund F. McGarrell, Kathleen Olivares, Kay Crawford, & Natalie Kroovand. Returning Justice to the Community: The Indianapolis Juvenile Restorative Justice Experiment, 8 (Crime Control Policy Center, Hudson Institute, 2000) (“Reintegrative shaming involves a conscious effort to shame the action of the offender and not the offender as a person. Disapproval is expressed with regard to the act, not the person. A level of respect is maintained toward the offender. The key to effective shaming is to hate the sin but not the sinner. According to reintegrative shaming theorists, this combination of accountability and respect is key to keeping the offender within the community”); see also, Lode Walgrove, “On Restoration and Punishment,” Restorative Justice for Juveniles, 20-21 (Allison Morris & Gabrielle Maxwell ed., Hart Publishing 2003). (“punishment by the state can become disintegrative shaming or stigmatization which further excludes the offender”).
31. V. Bender, M. King, & P. Torbet, “Advancing Accountability: Moving Toward Victim Restoration,” Pennsylvania White Papers, National Center for Juvenile Justice (2006) at n. 36(“Victim restoration is deeply rooted in restorative justice philosophy, which views crime as a violation of people and relationships. It creates an obligation to make things right. Justice involves the crime victim, the juvenile offender, and the community in search for solutions which promotes reparation, reconciliation and reassurance”).
32. McGarrell supra note xxxii, at 10 (“Victims often remain the hidden participants in the criminal and juvenile courts…the quick and confusing juvenile hearing may leave victims confused, powerless and frustrated when the offender seems to have gotten away with it”).
33. Daniel Van Ness. “Legislating for Restorative Justice,” 10 Regent U. L. Rev. (Spring 1998) (“restorative programs value the active participation of victims…often through direct encounters).
34. Lucas, supra note xii, at 1372.
35. Cuncannan, supra note xxi, at 303 and Lucas, supra note 5 at 1368 “victims feel less victimized”
36. McGarrell supra note xxxii, at 9. Debra Baker. Comment “Juvenile Mediation: Innovative Dispute Resolution or Bad Faith Bargaining?” 27 U. Tol. L. Rev. 897, 918 (1996) (“helps family members to communicate with each other and will keep a juvenile from having a record with the court”).
37. See Matthew Kogan, Note “The Problems and Benefits of Adopting Family Group Conferencing for PINS (CHINS) Children,” 39 Fam. Ct. Rev. 207(2001).
38. Sacha M. Coupet, “What to Do with the Sheep in Wolf’s Clothing: The Role of Rhetoric and Reality About Youth Offenders in the Constructive Dismantling of the Juvenile Justice System,” 148 U. Pa. L. Rev. 1343, 1346 (2000)
40. Patrick Griffith, “Establishing Balanced and Restorative Justice in Your Juvenile Court: The Judges Role,” Pennsylvania Progress (National Center for Juvenile Justice, Fall 1999).
41. Id. at 2.
42. See id. (“prevention, early intervention and structured supervision of juvenile offenders — through intensive community-based probation, school mediation programs, neighborhood dispute resolution boards…competency development…work skills, learning skills, empathy, and anger management techniques, intergenerational connections”); Supra note xxxviii, at 1343 (“use of social networks including family, community, school and work to play a role in diminishing and preventing delinquency…invites a wide network to participate in integrating the offending youth back into the community”).
44. Nancy Rodriguez. “Restorative Justice at Work: Examining the Impact of Restorative Justice Resolutions on Juvenile Recidivism,” Crime & Delinquency Volume 53 Number 3 July 2007, 357.
45. Ind. Code Ann. §31-10-2-1 (West 2008).
46. Ind. Code Ann. §33-14-10-5 (West 2008) (“(a) The prosecuting attorney or the victim assistance program shall do the following: ...(7) in a county having a victim-offender reconciliation program VORP, provide an opportunity for a victim, if the accused person or the offender agrees, to:
(A) Meet with the accused person or the offender in a safe, controlled environment
(B) Give to the accused persons or the offender, either orally or in writing a summary of the financial, emotional, physical effects of the offense on the victim and victim’s family, and
(C) Negotiate a restitution agreement to be submitted to the sentencing court for damages incurred by the victim as a result of the offense…If the victim participates in a VORP and (a)(7) the victim shall execute a waiver releasing…
(D) (1) the prosecuting attorney responsible for the victim assistance program and (2) the victim assistance program, from civil and criminal liability for actions taken by the victim, and accused person, or an offender as a result of participation by the victim, the accused person, or the offender in a VORP
(b) A victim is not required to participate in a VORP under subsection a(7)”).
47. McGarrell supra note xxxii.
48. Id. at 17-18.
49. Id. at 25.
50. Id. (“Conferences have included teachers, athletic coaches, and other important figures in the youth’s life”).
51. Id. at 25-26.
52. Id. at 52.
54. Patrick Griffin, “Ten Years of Balanced and Restorative Justice in Pennsylvania,” Pennsylvania Progress (National Center for Juvenile Justice, June 2006).
55. Bender supra note xxxi, at n. 33
56. Griffin supra note liv.
57. Reimund supra xxiv, at 5.
58. Id. “Balanced and Restorative Justice Implementation Grant and the Juvenile Justice Enhancement Training Initiative sponsors regional trainings”
59. Bender supra xxxi, at n. 36.
60. Id., see also, Pennsylvania Juvenile Court Judges Commission: Pennsylvania Juvenile Delinquency Benchbook. (2008), http://www.jcjc.state.pa.us/portal/server.pt/community/publications_and_forms/5037/juvenile_delinquency_benchbook/484187
64. Paul McCold & Benjamin Wachtel, “Restorative Policing Experiment: Bethlehem Pennsylvania Police Family Group Conferencing Project,” Community Service Foundation (May 1998), http://www.iirp.org/pdf/BPD.pdf
65. Patrick Griffin & Doug Thomas, “The Good News: Measuring Juvenile Court Outcomes at Case Closing,” Pennsylvania Progress. (January 2004), http://www.ncjjservehttp.org/NCJJWebsite/pdf/december2003.pdf.
67. Mark S. Umbreit, “How to Increase Referrals to Victim-Offender Mediation Programs,” Waterloo, Canada: Fund for Dispute Resolution (1993). A report on strategies for increasing the number of case referrals received from criminal justice agencies and for enhancing support and involvement of criminal justice officials. Available at http://www.rjp.umn.edu/img/assets/13522/How%20to%20Increase%20Referrals%20to%20VOM%20Programs.PDF
68. Peaceful Resolutions for Oklahoma Students (PROS), Oklahoma Bar Association, http://www.okbar.org/public/LRE/PROS.aspx
. See also PROS, Alternative Dispute Resolution, Early Settlement, http://www.oscn.net/static/adr/pros.aspx
69. Oklahoma. Stat. tit. 10A §2-7-301.D.1.e (Office of Juvenile Affairs - Responsibilities, offices, programs - Transfer of employees, powers, duties, etc… Beginning July 1, 1995, the Office of Juvenile Affairs, in its role as coordinator for delinquency prevention services, shall, after full consideration of any recommendation of the Oklahoma Association of Youth Services:…1. Establish guidelines for juvenile delinquency prevention and diversion programs for use in community-based programs, including but not limited to: …e. mediation programs…”). See also, Mark S. Umbriet, Elizabeth Lightfoot, and Johnathan Fier, “Legislative Statutes on Victim Offender Mediation: A National Review,” Victim Offender Mediation Association Connections, No. 15 (Fall 2003).
70. Id. at 21.
71. Id. at 21.
72. Jayme Rowe, Annual Report FY 13, Early Settlement Norman (presented to ADR Advisory Board Aug. 16, 2013)
73. Dispute Mediation Program Early Settlement Norman, available at http://www.ci.norman.ok.us/legal/dispute-mediation-program-early-settlement-norman
74. Interview with Ricky J. Knighton, II, Assistant City Attorney, in Norman, Okla. (Oct. 14, 2013).
75. Interview with Jayme Rowe, Early Settlement Norman Program Director, in Norman, Okla. (Sept. 25, 2013).
76. Oklahoma. Stat. tit. 12 §1801-6 (1997), See also, Mark S. Umbriet, Elizabeth Lightfoot, and Johnathan Fier, “Legislative Statutes on Victim Offender Mediation: A National Review,” Victim Offender Mediation Association Connections, No. 15 (Fall 2003).
77. Id. and See also, Supra lvii
78. Interview with Jane McConnell, Law-Related Education Coordinator, Oklahoma Bar Association, in Oklahoma City, Okla. (Sept. 25, 2013).
79. Supra note xvi.
80. Supra.note xxix at 5.
ABOUT THE AUTHOR
Danielle Fields is director of the Northwest program of Early Settlement. She started her career in the field of alternative dispute resolution in Virginia, where she was trained by the Virginia Conflict Resolution Center and certified by the Virginia Supreme Court. She attended Regent University School of Law in Virginia.
Originally published in the Oklahoma Bar Journal, OBJ 85 333 (Feb. 15, 2014)