While Alternative Dispute Resolution, and particularly mediation, is a concept that some embrace and others reject, rarely does it bring forth strong emotional responses either way. That is, until such concepts are introduced into the criminal justice system.
Although mediation is viewed cerebrally in connection with civil court disputes, it arouses fierce passions-both ways-when it is considered in the criminal court context. Supporters view it as a powerful way to get beyond an approach focused primarily on proving the necessary elements of a criminal statute and seeking the identification of the most appropriate punishment, often ignoring both the needs and harm heaped on the victim, community and society at large.
Opponents can view it as a radical, fringe idea perverting the very purpose of the criminal justice system and causing even greater pain to the victims while pampering the offender.
The Connecticut Bar Foundation and Quinnipiac Law School recently spotlighted the concepts of mediation, conciliation and restorative justice in the criminal law context at a thoughtful and provocative symposium entitled “Achieving the Goals of Criminal Justice: A Role for Mediation?”
For a full day, the program provided detailed and at times highly emotional examples of the many faces of the restorative justice movement. Connecticut’s Community Courts and the effective efforts of leaders such as Judge Raymond Norko, Jorge Simon and prosecutor Glenn Kaas in dealing with a high volume of cases were highlighted. Impressive results were reported, such as the Hartford Community Court alone handling 9,057 new cases and overseeing 29,427 hours of community service in one year.
So, too, was the professional handling of difficult criminal court mediations by Connecticut’s three major community mediation organizations effectively showcased. Other efforts portrayed included the Maryland prisoner re-entry mediation program and a Wisconsin prison program for serious offenders, many of whom would never be paroled or released.
Restorative justice takes many forms and defies a simplistic definition. At the heart of all of the initiatives is that a crime is more than an offense against the government and the violation of a statutory codification. The concept recognizes a wide ripple effect on victims or survivors of the offense to whom the offender must be accountable. A central tenet is that the victim must be given more of a meaningful voice in the justice system
The current restorative justice movement has been growing for several decades and has generated ever increasing research and literature to demonstrate its effectiveness. The roots of the movement can be traced to numerous cultures, including Native American and Mennonite practices.
While some might criticize it as a further victimization of those harmed by crime, the voluntary nature of the programs and the strict controls imposed on specific initiatives would seem to demonstrate otherwise. Nor can it be viewed as a meaningless “touchy feely” exercise in light of the powerful impact it has produced on both victims and offenders alike.
All of the programs are not utilized contemporaneously with the disposition of a particular case. The Wisconsin program described by retired Wisconsin Supreme Court Justice Janine Geske, the Quinnipiac program’s keynote speaker, for example described “surrogate” victims who meet with hard-core offenders unrelated to them long after any crime has been committed.
In the final analysis, the symposium did the greatest service which could be asked of any convener of a controversial topic: it generated as many questions as it answered. It introduced numerous speakers who gave poignant examples of the positive role which meditative processes can play in victim-offender reconciliation, prisoner re-entry into society and community courts dealing with quality of life crimes.
No speaker advocated a wholesale revamping of the criminal justice system but rather a continued thoughtful analysis, study and measured exploration of further ways in which such processes could aid the courts and society in relieving court congestion and reducing recidivism. More importantly, the symposium examined the beneficial role which a careful use of such mechanisms could play in helping repair the harm done to victims.
Viewed in light of the many experiences reported throughout the country, a controlled and voluntary use of meditative restorative justice models could serve as a valuable supplement to our current criminal justice system in connection with a wide variety of offenses, both minor and major.
Restorative justice models were not extolled as having the capacity to totally reform and remake our criminal justice system. Rather, they were seen as highly credible alternatives and supplements for all who are charged with invoking the criminal justice process-police, prosecutors and judges alike-to selectively and appropriately use to promote healing and rehabilitation alike.
Restorative justice is by no means a silver bullet for a sometimes overwhelmed criminal justice system. But nor is it a fanciful pipedream. It is a concept which has demonstrated some impressive results and is worthy of greater study and increased utilization.
The symposium provided a great service by increasing the visibility of restorative justice.
Harry N. Mazadoorian, a commercial arbitrator and mediator, is the Distinguished Senator Fellow in the Center for Dispute Resolution at the Quinnipiac University School of Law.