By Abby Tolchinsky and Ellie Wertheim
March 29, 2010
Restorative Justice is generally defined as an approach to criminal offenses that shifts the focus away from the punitive toward the effect of the criminal behavior on the victims, offenders and their communities. A key to restorative justice is the notion that the offender has a direct personal responsibility to those harmed, and that the responsibility is understood and expressed in the course of the process. Through dialogue, the offender comes to acknowledge the consequences of his actions. The term “restorative justice” encompasses programs along a broad gamut—from the victim and offender engaging in a dialogue regarding a violent incident to community accountability board meetings that may address issues that affect a greater number of people, such as vandalism of a public space.
There are many goals in the restorative justice movement for individuals who choose to partake of any of the range of programs or dialogues. First and foremost, the movement is founded on human connection. That is, victims actually have an opportunity to address the perpetrator directly regarding the incident between them. This creates not only an understanding of the other’s perspective, but also a process by which the victim may come to understand ways in which his behavior may have made him vulnerable to becoming a crime victim. From the offender’s perspective, there is the prospect of truly understanding the human effects of his actions.
For both the victim and the offender, participating in the dialogue may lead to the rare opportunity to work together and craft a resolution, engaging with each other and coming up with a mutually agreeable consequence, one that takes into account each party’s experience and needs. This may mean financial restitution, community service or some other work, along with the possibility of the victim dropping charges.
This dynamic sometimes leads to a deeper measure of understanding by the offender of the harm he has caused, which in turn may lead to an apology. While this may sound trite, that can be very powerful and meaningful for everyone involved. Particularly in juvenile and first offense cases, the victim may come to understand some of the forces that have contributed to the offending behavior, thus opening the space for mutual understanding and even change.1
Finally, there is an over-arching goal, borne out by data, that understanding both the causes and effects of criminal behavior may ultimately reduce recidivism, helping turn, particularly the young, away from a path of criminal behavior.2
In a powerful example, restorative justice principles were brought to bear in the infamous “Frozen Turkey case” in Suffolk County in 2004. For those less familiar, the teen defendant had tossed a frozen turkey from the rear of a moving car, unintentionally breaking through the victim’s windshield, bending the steering wheel and ultimately shattering all the bones in her face. While not a mediation case, the victim and the offender did meet in court in an encounter initiated by the victim.3
Prior to sentencing, the victim embraced the defendant, advising him to take the opportunity of this experience to make the best possible life for himself. Over time, she worked closely with the District Attorney’s Office asking for the most lenient sentence possible. The offender might have served 25 years in jail, but instead, at the urging of the victim, served several months and probation along with psychological counseling. Alice J. Rudnick, Principal Court Analyst for Alternative Dispute Resolution and Court Improvement Programs at the Office of Court Administration (OCA), reports that the young adult offender has become an active member of the Restorative Justice community.
Among the various forms of restorative justice is victim-offender mediation, a face-to-face, voluntary process whereby a crime victim chooses to meet with an offending party in the presence of a neutral facilitator. The participation of the offender, often a defendant in a criminal proceeding, is also voluntary. Neither party gives up this aspect of their participation at any point in the process, as it is a basic tenet of mediation.
Either may withdraw at any point in time, for any reason, no explanation required. Interestingly, the protections and values afforded by the Constitution and the criminal justice system—the right to counsel and safeguards against self-incrimination—dovetail with the voluntary aspect of mediation. That is, a defendant will not be forced to enter a room with a crime victim and discuss his alleged actions. Similarly, anything said in the course of mediation remains confidential and does not jeopardize a defendant’s actual case, should the mediation break down. Aside from the voluntary nature, according to OCA, criteria developed for programs throughout the state are specific to the individual mediation centers, in collaboration with various referral sources, most typically the District Attorney’s offices.
New York State Programs
Mediation Centers throughout New York State offer a range of opportunities for victim-offender mediations. In one such program, the Richmond County District Attorney’s Office refers non-felony criminal cases to the Community Dispute Resolution Center. Typically, these cases have not yet been before a judge when they are referred for mediation.
The victim must first agree to mediate. Only then is the offender approached, and he, too, must voluntarily agree to mediate. The sessions generally last up to two hours, and if no resolution is reached, a form simply is sent to the DA’s office indicating mediation was attempted. However, the cases often resolve so that the victim will ask that the charges be dropped and the DA will support the case being adjourned in contemplation of dismissal.
Of particular note, shoplifting cases consistently draw participation by the managers of area department stores who note that the dialogue discourages recurrence of the offending behavior and the store managers may gain insight as to ways in which to deter others from shoplifting. Other types of cases most often mediated in Richmond County may involve trespass, harassment and non-felony assault.4
According to Alice J. Rudnick of OCA, measures of these programs’ successes aren’t easily quantified. She says, rather, that success is subjective and depends on the parties’ experience of the process and perception of its outcome. For example, where there has been an issue of graffiti or other damage to a neighborhood, bringing people together may not have an immediate effect in the traditional manner of a warrant or a ticket, but it has the potential to change relationships, and empower people in the community who have a vested interest in ownership, safety and quality of life. Additionally, the offender may learn that, in order to better individual and community relations, others have a stake in his personal development and behavior. Finally, the victim(s) may learn ways in which they have contributed to their own vulnerability so they can better care for themselves and their property.
The hope is that there will be reduced recidivism, and also, improved relationships. This is not necessarily what we typically expect in the criminal justice system, one that operates in a paradigm of punishment, probation, fines, police records, jail time, etc. For the victim, looking for answers and information regarding what transpired, the traditional system may be isolating and disconnecting. After all, victims generally do not have opportunities to speak with offenders. In fact, they may never have closer contact than observing sentencing, from a distance.5 In contrast, both victims and offenders express satisfaction for having gone through a more humanizing dialogue such as victim offender mediation.6
During the past several years, in studies conducted throughout North America and Europe, participants in victim-offender mediations and administrators of such programs report high levels of satisfaction with the mediation process. There is a documented reduction in future criminal behavior and reported reduction of fear among victims, thereby honoring other criminal justice principles such as deterrence. Also, offenders are held directly accountable to those they have victimized. And perhaps most poignantly, victims of crimes who meet with their offenders are far more likely to be satisfied with the criminal justice system’s response to their case and report it to be a more humanizing experience than the traditional court process.7
For lawyers questioning whether mediation may be useful or appropriate in a particular area of practice, the Restorative Justice processes, ones that go to the heart of the criminal justice system, speak volumes. It is striking that those parties appearing on the surface to be furthest apart, and perhaps with the most intense emotions about one another, both benefit and report relief and satisfaction for having participated in an alternative process. If individuals in conflict whose goals seem to be mutually exclusive report benefits from mediation, this strongly suggests the possibilities for similar satisfaction in other legal areas.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
1. In Dutchess County, for example, the Department of Probation is working in concert with the local mediation center to incorporate restorative justice principles in work with youth offenders. Specifically, they conduct “Empathy Groups” in which the youth offenders write letters of apology to those harmed. The goal of these empathy groups is to increase accountability and awareness of the impact of the behavior in question. Conversation with Jody Miller, Executive Director of the Mediation Center of Dutchess County, March 22, 2010.
4. Conversation with Sequoia Stalder, Director of Conflict Resolution Services and Director of Training, The New York Center for Interpersonal Development, Richmond County’s Community Dispute Resolution Center, March 10, 2010.
5. According to Mark Collins, Assistant Coordinator of ADR and Court Improvement Programs for OCA, victim offender dialogue programs facilitate understanding and conversation even in cases of serious and violent crime. Victims report gaining a measure of closure and peace and the ability to move forward, even after the traumatic loss of a loved one.
6. Conversation with Sequoia Stalder, supra, March 10, 2010.
7. Mark Umbreit, Victim Offender Mediation Training Manual, Center for Restorative Justice and Peacemaking, University of Minnesota, January 2006.
By Abby Tolchinsky and Ellie Wertheim