Online Journal of Peace and Conflict Resolution 1.2 -- May 1998

Crime and Punishment:Can Mediation Produce Restorative Justice for Victims and Offenders?

by Marty Price, J.D.

 

In our society's criminal justice system, justice equals punishment. An eye for an eye. You do the crime, you do the time. You do the time, you've paid your debt to society and justice has been done. But justice for whom? Certainly not the victim.

Because our society defines justice in this manner, the victims of crimes often seek the most severe possible punishment for their offenders. Society tells them this will bring justice, but it often leaves them feeling empty and unsatisfied after getting what they sought. Punishment does not address the other important needs of victims. It cannot restore their losses, answer their questions, relieve their fears, help them make sense of their tragedy or heal their wounds.

Regardless of their particular point-of-view, most people agree that crime and violence are exploding out-of-control in the streets of our towns and cities. Most also agree that what we are doing about it is not working. We are fearful and we have good reason. We know our criminal justice system is broken and we don't know how to fix it.

Victim-offender mediation, with its focus on restorative justice, cannot provide all of the answers to our crime problem, but it is an essential part of the solution. Some background about the author and a description of victim-offender mediation will be helpful before proceeding with a discussion about crime, punishment and restorative justice.

About the author...

I am one of the small minority of victim-offender mediators who work primarily with cases of severe violence, including homicides. I also provide training and consulting for victim-offender mediation programs. My qualifications for this work include training and experience as a social worker and as a lawyer, over fifteen years as a mediator and trainer, founding and directing a juvenile court-based victim-offender mediation program, training in victim's assistance and last, but not least, my own victimization.

About victim-offender mediation...

Victim-Offender Mediation Programs (VOMPs), also known as Victim-Offender Reconciliation Programs (VORPs) bring offenders face-to-face with the victims of their crimes, with the assistance of a trained mediator, usually a community volunteer. Crime is personalized as offenders learn the human consequences of their actions, and victims (who are largely ignored by the justice system) have the opportunity to speak their minds and their feelings to the one who most ought to hear them, contributing to the healing process of the victim.

Victims get answers to the often haunting questions that only the offender can answer. The most commonly asked questions are, "Why did you do this to me? Was this my fault? Could I have prevented this? Were you stalking or watching me?" With their questions answered, victims commonly report a new feeling of peace of mind, even when the answers to their questions were even worse than they had feared or imagined. It seems to be better than not knowing the answers.

Offenders take meaningful responsibility for their actions by mediating a restitution agreement with the victim, to restore the victims' losses, in whatever ways that may be possible. Restitution may be monetary or symbolic; it may consist of work for the victim, community service or anything else that creates a sense of justice between the victim and the offender.

Victim-Offender Mediation Programs have been mediating meaningful justice between crime victims and offenders for over twenty years; there are now over 300 such programs in the U.S. and Canada and about 500 in England, Germany, Scandinavia, Eastern Europe, Australia and New Zealand. Remarkably consistent statistics from a cross-section of the North American programs show that about two-thirds of the cases referred resulted in a face-to-face mediation meeting; over 95% of the cases mediated resulted in a written restitution agreement; over 90% of those restitution agreements are completed within one year. On the other hand, the actual rate of payment of court-ordered restitution (nationally) is typically only from 20-30%.

Why is there such a huge difference in restitution compliance? Offenders seldom experience court-ordered restitution as a moral obligation. It seems like just one more fine being levied against them by an impersonal court system. When the restitution obligation is reached voluntarily and face-to-face, offenders experience it in a very different way. Perhaps most important, after facing the victims of their crimes, offenders commit fewer and less serious offenses than similar offenders who are processed by the traditional juvenile or criminal justice system.

When a case is referred to a VOMP, a mediator contacts both the victim and the offender to arrange appointments for separate meetings with each. At the individual meetings, the mediator explains the program, answers questions and screens the case for its appropriateness for mediation. If the case is a suitable one and the victim and offender both agree to participate, they are prepared for a mediation session. The preparation may include homework assignments and sometimes there are additional preliminary meetings.

Mediation sessions, at their best, focus upon dialogue rather than upon reaching a restitution agreement, facilitating empathy and understanding between victim and offender. Before beginning the session, the mediator provides ground rules to assure safety and respect. The victim usually speaks first, telling the offender how the crime affected him/her and may ask questions of the offender. The offender may offer an explanation and/or an apology. The victim's losses are discussed.

Whatever agreements the victim and offender make will reflect justice that is meaningful to them, rather than being limited to the narrow definitions of the law. In cross-state and cross-national studies, the overwhelming majority of participants, both victims and offenders, have reported in post mediation interviews and questionnaires that they obtained a just and satisfying result. Victims who have feared revictimization by the offender whom they have met in mediation typically report this fear is now gone.

The victim-offender mediation process may be useful at any stage of the criminal justice process. With young offenders and first-time offenders, mediation may be a "diversion" from prosecution and an opportunity to avoid getting a juvenile or criminal record. In these cases, charges may be dismissed if the offender mediates an agreement with the victim and then completes the requirements of the agreement. After a guilty plea or a conviction, a judge may refer an offender to a victim-offender mediation program as a part of the court's sentence or as a term of probation. Victim-offender mediations have taken place in prisons; some have occurred after an offender has been released from prison. The impending release of an offender may motivate the victims to seek mediation.

About mediation in cases of severely violent crimes...

Most victim-offender mediation programs do their work only with juvenile offenders and only with nonviolent offenses. The mediation of severely violent crimes is not commonplace. However, in a growing number of victim-offender programs, victims and survivors of severely violent crimes, including murders and sexual assaults, are finding that confronting their offender in a safe and controlled setting, with the assistance of a mediator, returns their stolen sense of safety and control in their lives. Increasingly, mediation is helping to repair the lives of surviving family members and offenders devastated by drunk-driving fatalities.

Such violent offenses are usually mediated upon the initiation of the victim, and only after many months (sometimes even years) of work with a specially trained and qualified mediator, collaborating with the victim's therapist and/or other helping professionals. Participation must be completely voluntary, for both victim and offender. Mediators carefully screen cases and every aspect of the mediation process has the safety of the victim as its foremost concern. Only offenders who admit their guilt, express remorse and want to make amends are candidates for mediation.

There may be restitution agreements for funeral expenses, psychotherapy and other financial losses, but there is obviously no way to restore the lost life of a loved one. The primary focus is upon healing and closure. It is the healing power of the victim-offender mediation process that draws me and many others to become involved in this work. Heartfelt apologies are usually offered and the victim and offender may discuss the issue of forgiveness. Forgiveness is not a focus of the mediation process, but the process provides an "open space" in which forgiveness may occur, for victims who wish to consider it at that time. Forgiveness is a process, not a goal. It must occur according to the victim's own timing, if at all. For some victims, forgiveness may never be appropriate.

In cases of severely violent crime, victim-offender mediation is not a substitute for punishment. In such cases, judges seldom reduce prison sentences as a result of mediation.

What about the need for punishment?

I am not talking about the need to incapacitate the most violent of felons-those who appear to be intractably hazardous to our health and safety. Incapacitation, unfortunately, must continue until we can learn how to generate change in such individuals. However, it is important to understand the need to incapacitate dangerous offenders as separate and distinct from punishment. When we focus on punishment and incarcerate offenders who are not dangerous (including those who have committed victimless crimes), we consume precious correctional system resources that should be reserved for those offenders whom we must incapacitate for our protection.

I am not talking about punishment as a deterrent to crime. The punitive approach to justice has resulted in the United States becoming the largest jailer (per capita) in the industrialized world, with a violent crime rate that is also second to no other industrialized nation. (Until just a few years ago, the U. S. was the number three jailer in the world, falling behind the former Soviet Union and the Union of South Africa.) If punishment deters crime, we should be the safest nation in the world. If punishment deters crime, then the answer to our out-of-control crime problem must be that we need to lock up more people still. How far should we go with this approach?

(Prisons have become one of our fastest growing industries and some states now have a punishment budget that is larger than their education budget. Unless we stem this monumental draining of the public coffers, it is unlikely that there will ever be stable and adequate resources for the human services needed to address the societal roots of crime-poverty, injustice, illiteracy and unemployment.)

I'm not talking about punishment for the purpose of rehabilitation. Our criminal justice system abandoned that theory for punishment in the 1970s and 1980s. Prisons rehabilitate relatively few offenders. The vast majority pass through the "revolving doors" repeatedly. We "warehouse" offenders in institutions where the culture within rewards violence, meanness, deceit, manipulation and denial. Most offenders return to the community as individuals who are then even more antisocial than before they were incarcerated.

Then why punishment?

If punishment is not really about incapacitation, deterrence or rehabilitation, then what is it about? Punishment is primarily for revenge (or retribution). Victims of heinous crimes commonly demand revenge. It seems like a natural response. Some may argue that the desire for revenge in response to victimization is "hardwired" into the human animal. History suggests this may be true.

Our criminal justice system is a system of retributive justice. Our policy of inflicting pain (i.e., punishment or retribution) upon those who harm others often leaves offenders feeling like they are victims. Those "victims" may then seek their own revenge. Unless we execute them or put them away for life without the possibility of parole, we must remember that they will eventually come back to us, often with their need for revenge screaming for satisfaction.

So punishment does not work as deterrence or as rehabilitation and it often exacerbates the problems we are trying to correct. Still the public (sometimes) and the politicians (more often) cry out that we must "get tougher on crime," demanding more punishment and more prisons. A well-known anthropologist once said that human beings are the only species on earth that recognizes what is not working and then does more of the same. Our society must find more creative, more effective solutions.

If not punishment, then what?

As I stated above, I think the desire for revenge may be a natural reaction to victimization. But, should we act on all of our natural impulses? I submit that when our criminal justice system begins to take the healing needs of victims seriously and does a good job of meeting those needs-when it meaningfully addresses the victims' losses and injuries, victims may no longer be so concerned with how much punishment an offender receives. Currently, victims receive little else that feels like justice. Our society tells us that justice equals punishment. But justice for whom? Certainly not the victim.

I have asked many crime victims' rights advocates, "How many victims or families of victims do you know who have felt satisfied, justified and healed after the offender was put to death or put away for a life sentence without the possibility of parole?" The typical answer is that it helped a little. The victims felt like they got something. But overall, they still felt like they had been revictimized by the workings of a criminal justice system that did not care about them. They needed much more than this punitive kind of justice. The system told them they should feel satisfied, even lucky, if they got this much.

I'm thinking about a victim advocate (I shall call him John) whose parents were murdered in his presence when he was a teen-ager. John and his sister were shot and left for dead. Some years later, after witnessing the execution of one of the murderers, John experienced no relief from the hate and bitterness that had been burning inside him for so many years. This disappointment led him to seek a mediated confrontation with the other murderer (I shall call him Ralph), who was serving two consecutive life sentences.

After months of preparation with the mediator, John came face-to-face with Ralph (who also received months of preparation), behind prison walls. In a three-hour mediation session, Ralph learned from the lips of his victim of the terrible devastation he had brought upon a family. He told John of his daily shame and pain, and his wish that he could have been executed along with the other murderer. John learned of the brutal victimizations Ralph had suffered throughout his childhood and teen-age years. They cried together. John reported that the mediation and the months he spent preparing for it changed his life. It brought him a release from the thoughts and feelings that had seemed inescapable and it freed him to move on with his life. Punishment is not for the benefit of victims. Our society exacts punishment in response to the notion that crime is a violation against the state and it creates a debt to the state. The case is called "the People of the State of Oregon vs. John Jones." The prosecutor represents the state, not the victim. The system is offender-focused; its attention is upon punishing the offender, while protecting the legal rights of the offender. Victims of the crime receive little attention. Crime Victims' Bills of Rights, now law in most states, seem to affect the balance somewhat. A currently proposed Victims' Rights Amendment to the U.S. Constitution could make a greater impact.

What is restorative justice?

If our system of retributive justice is not working and not meeting our needs, then what is more effective? Victim-offender mediation is but one of many approaches to restorative justice. Restorative justice sees crime as a violation of human relationships rather than the breaking of laws. Crimes are committed against victims and communities, rather than against a government.

Our offender-focused system of retributive justice is designed to answer the questions of, "what laws were broken, who broke them and how should the law-breaker be punished?" Focusing on obtaining the answers to these questions has not produced satisfying results in our society. Instead, restorative justice asks, "who has been harmed, what losses did they suffer, and how can we make them whole again?" Restorative justice recognizes that, to heal the effects of crime, we must attend to the needs of the individual victims and communities that have been harmed. In addition, we must give offenders the opportunity to become meaningfully accountable to their victims and to become responsible for repairing the harm they have caused. Merely receiving punishment is a passive act and does not require offenders to take responsibility.

By focusing on punishment, our criminal justice system treats offenders as "throwaway people." Restorative justice recognizes that we must give offenders the opportunities to right their wrongs and to redeem themselves, in their own eyes and in the eyes of the community. If we do not provide those opportunities, the offenders, their next victims and the community will all pay the price.

Restorative justice is not just victim-offender mediation. It is not any one program or process. It is a different paradigm or frame of reference for our understanding of crime and justice. Some other restorative justice responses to crime include family group conferencing, community sentencing circles, neighborhood accountability boards, reparative probation, restitution programs and community service programs.

About victims' rights and victim-offender mediation...

Over the years, there has sometimes been an uneasy relationship between victims' rights advocates and the growing restorative justice/victim-offender mediation movement. Victim advocates objected loudly (and rightly so!) when early victim-offender programs were overly persuasive or even coercive, in their well-meaning but misguided efforts to enlist the participation of victims. Victims' assistance programs are now co-training with victim-offender mediation programs, teaching mediators how to work more sensitively and respectfully with victims.

Victim advocates have sometimes viewed mediation as "soft on crime" and therefore, not in the best interests of victims. Those victim advocates who have observed or participated in mediation sessions, taking note of the trepidation seen in offenders as they face their victims, know that mediation is not soft on crime. Notable is the choice made by many offenders to face the judge rather than to face the victim. Many victims' rights advocates are now asserting that a mediated confrontation ought to be a victim's right, available for all victims who want such an opportunity.

The recognition of common ground between victim advocates and restorative justice advocates has led to recent alliances, partnerships and collaborations to support or promote restorative justice reform of the criminal justice system. Some of the organizations which have contributed to these efforts include, at the federal government level, the U.S. Department of Justice Office for Victims of Crime, the National Victim Center, the National Institute of Justice, the National Institute of Corrections, and the Office for Juvenile Justice and Delinquency Prevention's "Balanced and Restorative Justice Project." Outside the government, other national organizations contributing to this work include the National Organization for Victim Assistance (NOVA), Mothers Against Drunk Driving (MADD), the Victim-Offender Mediation Association (VOMA) and the Center for Restorative Justice and Mediation, at the University of Minnesota School of Social Work.

About getting tougher on crime...

Understandably feeling deprived of justice in so many ways, crime victims and their advocates have often sparked and championed the recent flood of "get tough" legislation and ballot initiatives for longer prison terms and increased mandatory minimum sentences. At the same time, many other victims, victim advocates and criminal justice experts are re-thinking the value of more punishment.

Social research is suggesting that for many crimes, sentences of from one to two years are the most likely to be effective, while longer sentences may be counter-productive to rehabilitating offenders. Such relatively moderate sentences serve the dual purposes of denouncing the crime and punishing the offender, while reducing the likelihood that the offender's bonds with family and community support systems will be permanently destroyed and replaced with allegiances to other criminals. The fracturing of family and community bonds and the long-term imprinting of prison culture and values are the two factors which are the most predictive of an offender's prompt return to crime after being released from prison.

A call to action for criminal justice reform...

While actively supporting the work of victims' rights organizations, including the Victims' Rights Amendment to the U.S. Constitution, I also suggest to crime victims and victim advocates that they are being revictimized by our criminal justice system when they let the system sell them its "party line"--selling them punishment as the cure for what ails them. In our mainstream criminal justice system, punishment is the "bone" that the system throws to victims, while offering little else. Victims, their advocates and others would do better to let go of their demands for more prisons and more punishment. Those demands are not serving the needs of victims or society. They are instead helping to perpetuate a system of retributive justice that is failing us all.

Let us work together to implement restorative approaches to justice that focus the attention of offenders upon the victims of their crimes and upon their communities, instead of upon the law and the legal system. A restorative justice approach concerned with righting the wrongs to victims and making amends, repairing the harm done (in whatever ways possible, including victim compensation) and restoring the lives affected by crime, offers us a much more hopeful vision for the future.

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