Restorative and Adversarial Methods Applied in Cases of Juvenile Delinquency in the US - Essay Example

A Comparative study on restorative and adversarial methods applied in cases of Juvenile delinquency in United s. Crime in society has almost always evolved some of the most interesting and intriguing jurisprudential developments while also building an amazing array of philosophical reasoning. Man has always grappled with its aim to bring order to its collective behaviour by regulating individual behaviour at the macro level yet restoring personal freedom at the micro level. Laws are such instrument of regulation or condition under which men of different backgrounds interact with each other to form the society. Individual liberties under social contract theories get deposited with the sovereign to form the state. By that theory and also by theories of Durkheim’s1 organic society and mechanical society, it is imperative to make sure that when an individual flouts law (that is the social order and cooperation on which it is based) that person the society needs to react. Such reaction has been long debated with the crux being whether to remove the person from the mainstream and to alienate him completely or to rehabilitate him into the society through correctional measures that are restorative in nature. It is important for one to however look at Juvenile Delinquency differently from general crimes or criminal tendencies. The term `juvenile delinquency’2 has been differently interpreted but, generally speaking, it refers to a large variety of behaviour of children and adolescents which the society does not approve and for which some kind of admonishment, punishment or preventive and corrective measures are justified in public interest. The situation in the Nonesuch County can be addressed through several theories on Juvenile delinquency as such academic discourse is required to decide the best course of action. The theory we need to look at most carefully is the watershed concepts of Sheldon and Eleanor Glueck who had evolved the Multifactor approach to juvenile delinquency. 3 Glueck and Glueck used the multi -factor approach in comparing five hundred delinquents with five hundred non-delinquents. The delinquents were matched by residence in under privileged areas, age, ethnic or origin and intelligence. They considered sociological viable (the environment) and psychological variables (internal dynamic processes). In addition, they administered tests. They concluded that delinquency of the youngsters could not be blamed on any one set of factors. The delinquent behaviour was the result of a combination of intellectual, social, tempera-mental and physical factors. To pinpoint any particular one would be difficult. Delinquency is the result of interplay of many different and diverse variables as viewed from these multi -factor approach.4 As has been rightly pointed out by Cullen and Agnew, the theories are quite incomplete in themselves and most of the scholars refuse to accept a multi disciplinary approach as they all believe theirs is the best theory. While looking at the proposal of introducing Restorative conferencing in Nonesuch one must therefore remember that there is no good to be served by following any of the theories per se and also there is no reason to be completely deterred by any one of them. This has been brought out by the two scholars through an analysis of the various schools of thought with a classis example being that of the sociological school which puts social environment above all as the reason behind delinquency while completely failing to address situations where people from the same background and upbringing and at times from the same household choose to deviate or not deviate from social norms. 5 Before we understand the restorative System, we must now first look at the pros and Cons of the adversarial system where he role of the attorney and the jury are paramount. This is because this system is distinguished most clearly into two players the representatives of the parties to the dispute and the judge or jury presiding over it. The adversarial system gives the attorney’s a primary but focused and narrow role of arguing and presenting his client’s case the based to win the matter and not necessarily to determine the truth. The underlying assumption is that truth will emerge out of such vigorous verbal conflict. Though a great scholar like Richard Posner compares the adversarial system to a case of a competitive market, it is not very clear whether such method necessarily addresses issues as sensitive as juvenile delinquency so well. In Posner’s opinion like in a competitive market, here the judges get full information about the dispute through this conflict on both sides and that helps them determine the truth. But the question is whether justice is all about finding the truth and punishing? Then how is it different from a police force and a strong investigative agency? Adversarial system surely finds the truth and more often than not there can be little doubt that it is the better method to follow when it comes to cases concerning violent crimes. It is a well-accepted theory of criminology to distinguish between violent and non-violent crimes.6 Thus it is well established that juvenile delinquency, especially given the history and socio-economic situation of Nonesuch, is a special form of criminal situation that requires clearly special attention. A recent report suggests that due to the great rise in violent (even if we leave out homicide and rape) crimes by youth, there is a public outcry for greater and stricter action against juvenile delinquents as the public perception is that the Juvenile courts and the juvenile justice system has become extremely lenient on offenders.7 Insights derived from extensive service in Pennsylvanias juvenile justice system highlight "In Search of Juvenile Justice: From Star Chamber to Criminal Court," by Judge Patrick R. Tamilia. By anecdotal review, Judge Tamilia demonstrates the evolution of the juvenile court system from a benevolent parens patriae philosophy devoid of due process, to an adult court-like, adversarial system, where constitutional guarantees are extended to juveniles. His thorough history includes a discussion of various trends and movements influencing the entire system from the 1960s through the 1980s. It also chronicles the contributions of leaders in Pennsylvanias juvenile law field and the role of judicial organizations in developing the states current juvenile justice system. Judge Tamilias observations provide valuable perspective with respect to the juvenile justice systems past flux and current status. His specific recommendations for improving the juvenile justice system, particularly his description of three successful institutional placement programs provide guidance for improving juvenile justice in all states. The recent trends clearly show how the prosecutor with his powers of search, seizure, confessions and equipped state machinery is always at an advantage in criminal trial. This is a clear shift from the past where defending a criminal by creating the alternative hypothesis was always easier and the state would fail to win most criminal trials. But in spite of the changes in law and the tough measures that the states like Ohio have taken makes it doubly important to balance the necessity of greater prosecution with a less traumatic method of determination of truth. The system proposed in Nonesuch is a step in that direction. But the system can only improve if the laws and punishments are made stricter. The problem with adversarial system as regards the offender is that he/she often feels cornered in the argumentative environment. Moreover, these offenders being juveniles the attempt should be to nurse their bruised young minds back to shape and conformity with social norms. The terrible approach that involves such argumentation and even character assassination will only alienate those young disturbed minds further. From a social point of view there is another problem and that is of further social stigma and also of taking all conditions leading to such action being considered as trials get down to the point of ‘did he or did he not’ commit a crime. While adversarial system asks three questions in a dispute, Restorative system takes a more holistic approach. Adversarial system is interested in the following three questions: Who did it? What laws were broken? What should be done to punish or treat the offender?8 As noted by Howard Zehr (1990), restorative justice emphasizes three very different questions: What is the nature of the harm resulting from the crime? What needs to be done to “make it right” or repair the harm? Who is responsible for this repair? Restorative justice also suggests that the response to youth crime must strike a balance among the needs of victims, offenders, and communities and that each should be actively involved in the justice process to the greatest extent possible. These are important goals of restorative conferencing and are balanced toward society building and preservation. In this less formal setting one can more easily get down to the crux of the problem. Which is why various nations like Australia, New Zealand and We in the United States are looking at this option more seriously.9 Here is an example of a victim-offender mediation method of restorative conferencing. The victim was a middle-aged woman. The offender, a 14-year-old neighbor of the victim, had broken into the victim’s home and stolen a VCR. The mediation session took place in the basement of the victim’s church. In the presence of a mediator, the victim and offender talked for 2 hours. At times their conversation was heated and emotional. When they finished, the mediator felt that they had heard each other’s stories and learned something important about the impact of the crime and about each other. The participants agreed that the offender would pay $200 in restitution to cover the cost of damages to the victim’s home resulting from the break-in and would also reimburse the victim for the cost of the stolen VCR (estimated at $150). They also worked out a payment schedule. During the session, the offender made several apologies to the victim and agreed to complete community service hours working in a food bank sponsored by the victim’s church. The victim said that she felt less angry and fearful after learning more about the offender and the details of the crime. She also thanked the mediator for allowing the session to be held at her church.10 The pros and cons of various styles11 that have been reportedly implemented are in short as follows: Studies clearly show that Justice has been better delivered through this method than any other known till date. The satisfactory resolution of disputes has been as high as 95% when done in presence of trained mediators. This has helped the victims understand the kids and have sensitized the society to kids’ psychology. It has also helped the offenders understand the society and its rues better and has helped them understand the far-reaching consequences of their actions. It is in a way good that Nonesuch is looking at a similar structure. However other structures though equally successful, like reparative Boards and such need far greater degree of participation by the community and might be more useful in some ways to build a cohesive unity among people of the community though studies show that these sessions are often one way traffic and not exactly interactive as such degree of training the community is difficult. It is important that when we choose conveners of these conferences for our county we must take people with understanding of psychology and ability to draw people out. But to be precise what we at Nonesuch are contemplating is a classical family conferencing method. A classic case of family conferencing is stated below. A family conferencing group convened in a local school to consider a case in which a student had injured a teacher and broken the teacher’s glasses in an altercation. Group members included the offender, his mother and grandfather, the victim, the police officer who made the arrest, and about 10 other interested parties (including 2 of the offender’s teachers and 2 friends of the victim). The conferencing process began with comments by the offender, his mother and grandfather, the victim, and the arresting officer. Each spoke about the offense and its impact. The youth justice coordinator next asked for input from the other group members and then asked all participants what they thought the offender should do to pay back the victim and the community for the damage caused by his crime. In the remaining 30 minutes of the hour-long conference, the group suggested that the offender should make restitution to the victim for his medical expenses and the cost of new glasses and that the offender should also perform community service work on the school12 The family group conferencing process has been implemented in schools, police departments, probation offices, residential programs, community mediation programs, and neighborhood groups. Conferencing is most often used as diversion from the court process for juveniles but can also be used after adjudication and disposition to address unresolved issues or determine specific terms of restitution. Conferencing programs have been implemented within single agencies and developed collaboratively among several agencies. After completing a training course, either volunteers or paid employees can serve as conference facilitators. Participation by all involved in conferences is voluntary. In addition to the victim and offender and their family members, a conference might involve teachers, other relatives, peers, special adult friends, and community resource people. However, it is pertinent to note that while Lawyers are not essential neither too welcome they are definitely worthwhile in such processes. However it must be kept ion mind and a strict code of conduct be created for those appearing as attorney in these conferences that they do it in a mediatory mode and keep things as informal as they possibly could be. That would help the process go on smoothly yet strictly according to the legal niceties and constitutional safeguards. Therefore, while this new proposal will go a long way in solving our problems in the county, it is proposed that a sensitization and long term training be done for lawyers and people who will preside over it. Moreover, recording of reasons to a final decision should be kept open for easier enforcement at the judicial level. However this judicial role in my opinion should have been avoided. This will be a whole new model as it is mixed between Family Group Conferencing and reparative Boards. Read More