GPSOLO April/May 2008
Restoring Juvenile Justice
There is a general consensus that juveniles involved in crime and delinquency should be handled differently than adults. Intuitively we have come to realize that juveniles’ reasoning powers are not yet developed to the same extent as adults’. Modern brain development research has proven that the part of the human brain responsible for judgment does not develop fully until about the age of 25. Crime statistics show that the majority of crime is committed by people between the ages of 15 and 25, with a secondary bump from 12 to 15. It behooves us, as a society, to intercede in these juvenile behaviors if we want to impact crime rates later in life.
Juveniles in the Traditional Justice System
In most jurisdictions the current justice system separates juveniles from adults and seeks ways to impact juveniles’ behavior so they will not continue to create harm in their communities. Judges assigned to juvenile court cases are reluctant to remove juveniles from the community until all other options are exhausted. It takes a concerted effort over a length of time for a juvenile to become institutionalized in most states.
The typical way of handling juveniles in our system is to impose sanctions on them that are meant both to punish bad behavior and teach better options in hopes of correcting that behavior. Juveniles involved in early moderate crime and delinquency are reprimanded and released in hopes they will self–correct, or they are assigned to rudimentary diversion programs where they are typically required to do some community service and write apology letters and sometimes a research paper. Often the community service is simplistic and routine, such as cleaning up the courthouse grounds, picking trash out of a roadside ditch, or sorting cans and bottles from the county’s recycling bins. Although this work produces a real benefit to the public in some way, it generally has no real connection to the situation that brought the juvenile to this point.
Sanctions grow with the seriousness of behavior and the number of times a juvenile is seen in court. Eventually, juveniles will find themselves institutionalized but usually for a shorter time than for adults. Many states limit such detainments to anywhere from 90 days to six months, and it is rare for juveniles to receive more than a year in confinement unless they are remanded to adult court.
Juveniles who show emotional instability or the need for chemical dependency treatment are often court ordered to counseling and treatment programs, where the law allows. Unfortunately, the juvenile has no “buy in”—no personal investment in the treatment—and most often the programs fail to achieve behavior change. Certainly, most juveniles manage to stay clean for as long as urine tests are ordered, but as soon as the probation ends, the substance use resumes. Behavior contracts imposed by courts or probation often fail as well, especially when they require juveniles to achieve certain grades in school—the required level of scholastic success is often impossible for the juveniles.
The courts routinely order a range of probation sentences for juveniles. Informal probation, which is the kind most frequently ordered by the courts, requires a juvenile and guardian to have an initial meeting with a probation officer to receive instructions. The juveniles are then left to complete whatever is assigned them and will not see a probation agent again until the end, if ever. The mid–range of probation requires an agent to make telephone contact and in some cases at least one in–person contact during the duration of the probation period. Intensive probation, which is least frequently ordered by the courts, requires much more hands–on watching by the agent and may include electronic monitoring. In the usual understaffed and overextended probation offices, actual one–to–one work with any juvenile becomes very limited, if not impossible.
When necessary, the courts order placement outside the home. Usually this is done only if the juvenile has exhibited a long history of criminal and delinquent behavior largely uninterrupted by behavior change, or if the juvenile has committed actions that exhibit a blatant disregard for personal safety or a consistent threat to the safety of others. Options for placement range from community housing with day programs to state institutions in the prison system. The day programs are generally voluntary—they are not lockdown facilities and do not stop a juvenile from leaving.
Community placement programs have a multi–tiered system. First–timers are usually limited to a stay of no more than a couple days to two weeks. Juveniles who have shown more persistent behaviors can be assigned for 30–, 60–, and sometimes 90–day programs. These programs are outside the home but in the community, and they generally involve social services as well as probation services. Some community–based placements take the juvenile outside the community where they live.
Finally, there are programs within the state corrections system. Corrections–based programs range from “camp” programs to incarceration in juvenile prison settings. These are institutions that may offer more programming and education and counseling options than adult prisons but nevertheless are still surrounded by high walls, barbed wire fences, and electronic lockdown technologies. Camps look like any youth camp except for the fencing and warning signs on the perimeter of many. The camps have longer assignments ranging from 60 days to a year depending on jurisdictions. These programs include boot camps and are usually gender specific. Once the juveniles’ assigned time is up, they return to the community, often with little or no preparation of those communities to receive these juveniles back into their midst.
Results of the typical system approach have not been very positive. Recidivism is high, with some juveniles believing that getting to the point of “doing time” is a badge of honor back in their community. Behavior change is rare, and generally we see an escalation of harmful behavior once the system begins assigning sanctions. Restitution is rarely received in full by victims, and some jurisdictions have all but stopped seeking it from juveniles.
Restorative Justice and Juveniles
In light of these poor outcomes, an alternative system is gaining popularity in many parts of the United States and around the world. Restorative justice reverses some of the practices of traditional retributive justice while keeping many of its goals. Restorative justice seeks to protect the community by achieving real behavior change through building competencies, engaging the community and juvenile offenders in the process, and allowing victims to define the harm caused them and seek out adequate solutions to its repair through their direct involvement in the process. Restorative practices generally bring the offender, the victim, and the affected community together in a face–to–face meeting (or meetings) overseen by trained facilitators to discuss the incident and the behavior and seek solutions. The offender, the victim, and the community each has equal responsibility within the process, and solutions are achieved through consensus.
Restorative justice does not seek sanctions nor speak of punishment. In this approach, crime is viewed as harm to a person caused by another person, and the process seeks to repair that harm and impact future behavior. Juveniles in restorative justice are asked to recall their behavior, explore why they engaged in it, and find a way to repair the harm and improve their behavior for the future. Victims define the harm and explain what they need in terms of repair. Most importantly, they get to tell the offender how they felt and feel now because of the incident, and they do this face–to–face. The community can express how it is impacted and provide support to both victims and offenders as those offenders work to repair harm and change their behavior.
The whole process removes the case from the sterile, formal court environment to the community where the event occurred and those affected live. It is a process that begins as soon as the events are known and the participants identified. Because due process must be preserved and is as important to restorative justice as it is to the traditional system, this process is entirely voluntary, and it requires offenders to admit their involvement and be willing to seek a solution. Juveniles must have parental or guardian involvement and agreement to engage in this process if it is to go forward. Restorative practices do not argue guilt or engage in fact finding but assume basic factual agreement already exists. Where these issues are open, cases are referred to the traditional system, which is designed to deal with these issues and provides the best forum available to determine the facts of a case and assign guilt.
A typical restorative process begins with a facilitator studying the case and contacting key participants. The victim, juvenile and parents/guardians, and key individuals from the community are contacted, generally in that order. The process is explained, and all are told what will be expected of them in the process. Each person’s story is heard, and each is “prepared” for the face–to–face meeting to come. All are encouraged to bring along some support person(s). At the face–to–face meeting, each participant gets to tell his or her story, ask questions, and help decide the outcome. A consensus agreement ends the meeting. The facilitator is a neutral party who prepares the participants, facilitates the discussion, and writes out the agreement, but never decides or influences the outcome. Juveniles and parents/guardians participate directly, not through representation, and are free to end their participation at any time. Such a decision will put the case back into the traditional system.
Typical Outcomes with Restorative Justice
Typically, cases where restitution is a factor see some form of restitution agreed to. Because the juvenile is actively participating and promising to pay, restitution is generally successful. Programs often see restitution repayment rates of 90 percent or higher. Consensus and victim participation help achieve this high rate by keeping the amounts reasonable and doable. Victims also often ask for symbolic or representative restitution in place of dollar–for–dollar payments. Sometimes juveniles will be asked to pay half in dollars and half in work such as helping set up a day care picnic event for the victim or helping to clean the victim’s church. Juveniles tend to take this responsibility more seriously because they have promised to do it and were not told to or ordered to by a dispassionate or angry adult.
Where juveniles acknowledge chemical abuse or emotional distress, counseling and treatment are often part of an agreement. Once again, the success of this effort is more likely because the juvenile (and parents/guardians) have a “buy in” to the counseling. They are not being ordered to attend counseling; they are admitting the need and seeking the help. This is a significant difference and a recipe for success rather than failure.
Juveniles often agree to apologize for their actions, many times actively offering an apology. In these processes, apologies can be spoken directly to the victim and community in person. There is no need to write a letter, and apologies tend to be much more appreciated and heartfelt in this setting.
Community service is often part of an agreement. It tends to be more related to the act, or at least the juvenile better understands how this event has impacted the community and why he or she needs to make amends in a broader way. Many juveniles find they enjoy the work so much they seek ways to stay on and remain involved long after the required work is completed.
Agreements are tailored to each specific situation and are limited only by participants’ imagination, local resources, and careful reality checking of each task. Community participants provide informal oversight and support the juvenile in the completion of the agreement.
Juveniles need to have timely intervention, and restorative practices can be done more quickly than the traditional system typically allows. When done as a diversion at the community level (i.e., when removed from the traditional system), cases can be brought to a meeting and an agreement can be in place within two or three weeks. The timeliness, sensibility, and flexibility of the agreements from these processes greatly enhance the success rates of restorative practices.
Restorative Justice in the Traditional System
After working in the traditional system for nearly 30 years and practicing restorative justice for more than a dozen, I am convinced we need both. Not every case should be a restorative justice case, but not every case need be in the traditional system, either. The most crucial role the courts and its officers can play is timely referral of cases to restorative programs. As a police officer, I was able to immediately recognize and assign cases to restorative justice as they came in. Our agency cut the number of prosecution referrals in half and had better results, including a substantial reduction in recidivism and a drop in the overall juvenile crime rate thanks to proper use of both options. Local attorneys who knew of our program sometimes called me to suggest their client’s case might better be dealt with by the community than the courts. Attorneys properly educated in restorative justice and its possibilities can and should make such recommendations. Although lawyers are not allowed to “practice” in a restorative setting, they can and do attend as supporters or community members. In my experience they are valuable assets in any restorative process.
Coordinators of restorative programming can be housed within the courts, the prosecutor’s office, probation, or the police. They can help organize community volunteers, oversee cases, track agreements, and train facilitators and others in restorative justice. Such an arrangement helps facilitate timeliness and provides better tracking within the system.
Members of the traditional system—including judges, attorneys, probation, the police, and court administration—need to become educated in restorative justice. They need to understand the principles and practices at work, how to refer cases to local programs, what makes a good case for restorative justice, and which cases should not be referred. The traditional system has vast resources that can help any restorative justice program function more effectively, and the two systems must find ways to work together to increase the success of both. In the meantime, support from professionals within the traditional system for restorative justice and local initiatives is vital to providing the best service possible for the families, victims, and communities we serve.
David J. Hines retired after serving with the Woodbury, Minnesota, Police Department for more than 28 years, during 12 of which he coordinated a juvenile program and restorative community justice program. He has facilitated more than 600 cases in restorative practices and conducted training in restorative justice practices for more than 3,000 people across North America. He co–authored a training curriculum in restorative conferencing and a train–the–trainer curriculum as well. He may be reached at email@example.com.