Restorative Justice and Youth Offenders in Nebraska

• Publication year: 2021

98 Nebraska L. Rev. 1. Restorative Justice and Youth Offenders in Nebraska

Restorative Justice and Youth Offenders in Nebraska

Kristen M. Blankley(fn*)
Alisha Caldwell Jimenez(fn**)

TABLE OF CONTENTS

I. Introduction to Restorative Processes .................. 6
A. Underlying Purposes of Restorative Justice ........ 6
1. Focus on Accountability ........................ 7
2. Victim-Centered ............................... 9
3. Reintegration into the Fabric of Society ........ 10
B. Types of Restorative Justice Processes ............. 11
1. Sentencing Circles or Peacemaking Circles ..... 12
2. Victim-Offender Mediation ..................... 12
3. Victim-Offender Conferencing or Dialogue ...... 13
4. Family Group Conferencing .................... 13
5. Problem-Solving Courts ........................ 14
6. Truth Commissions ............................ 15
C. Established Success of Restorative Justice Practices .......................................... 15
D. Authority to Engage in Restorative Justice Processes ......................................... 17

II. History of Restorative Practices in Nebraska .......... 17
A. Family Group Conferencing ........................ 18
B. Victim-Offender Mediation ......................... 19
C. Problem-Solving Courts ........................... 20

1

III. New Victim-Youth Conferencing Initiatives in Nebraska ............................................. 21
A. Victim-Youth Conferencing in Nebraska ........... 21
1. Case Sources .................................. 22
a. Schools .................................... 23
b. Diversion .................................. 25
c. Probation .................................. 26
2. Funding Sources ............................... 27
3. VYC Process ................................... 29
a. Intake and Initial Sessions with the Youth and Victim ................................. 30
b. Victim-Youth Conference ................... 33
i. What Happened? ....................... 33
ii. What Was the Effect? .................. 34
iii. How Can the Situation Be Made Better? ................................. 35
c. Follow-Up ................................. 36
d. Confidentiality and Privilege ............... 37
B. Outcomes of Victim-Youth Conferencing ........... 38
1. Restitution .................................... 39
2. Apologies ...................................... 40
a. Benefits to Victim .......................... 40
b. Benefits to Youth Offender ................. 41
c. Benefits to Community ..................... 42
3. Community Service ............................ 42
4. Other Remedies ............................... 42
C. Use of Surrogates in Victim-Youth Conferencing . . . 43
D. Pilot Project Results and Additional Research and Assessment Findings to Date ...................... 44
E. Critiques of the Program .......................... 48
1. Structural Critiques ........................... 48
a. High Incentives to Participate and Complete the Program ............................... 48
b. Participants Admit Fault ................... 48
c. Apologies May Be Insincere ................ 50
2. Programmatic Critiques ....................... 51
a. Low Case Volume Outside of Lancaster County/Lincoln Area ....................... 51
b. Low Facilitator Diversity ................... 53
c. No Permanent Funding (Yet) ............... 54

IV. Conclusion ............................................ 55

2

Jeremy, a high school freshman, lives in Lincoln, NE.(fn1) He and his friends regularly visit one of the city pools in the summer and into the fall. One day, Jeremy discovers that his tennis shoes, his most prized possession, went missing from the locker room while he and his friends were swimming. Through the grapevine, Jeremy learns that Brandon, a classmate, might have taken them. At school the next week, Jeremy confronts Brandon at his locker. Brandon denies everything, and ultimately Jeremy punches Brandon in the face. A teacher witnesses the event; the students are taken into the principal's office and the police become involved.

Jeremy doesn't have prior involvement with the police and he is on the freshman basketball team. His coach and his parents are going to learn about this incident. Jeremy's biggest concerns are his basketball career and disappointing his mom. He also does not want to be labeled as a "criminal" in the eyes of his peers or the community.

Katie and Julie, current eighth graders, have been best friends since the first grade. They live across the street from one another and spend countless hours together. As Katie reached adolescence, her behavior became more erratic, and she now suffers from anger issues. On one summer day, the girls are together at Julie's house, hanging out in her room. The girls get into a terrible fight over a boy. Katie bursts out into a rage; she shouts and hits, scratches Julie's arm, and throws Julie's mobile phone into the wall, breaking the phone and damaging the wall. Julie's dad calls Katie's dad, and Katie's dad calls the police, turning in his own daughter.

Katie is truly sorry and her biggest concern is making up with her best friend. The incident, however, did not help her already rocky relationship with her parents. Katie's dad called the police because he is at his wit's end trying to discipline her at home. As with Jeremy, Katie has not had any prior contact with the police.

Ashlie is best friends with Carli, and they are both freshmen in high school. Carli recently broke up with Mason, a high school junior. All three students go to the same high school. One day in the hallway, Ashlie saw Carli crying. Ashlie just learned that Mason has been calling Carli a "slut" on social media. Ashlie gets very upset, storms out of the school, and takes her keys to the side of Mason's car. Ashlie's escapade causes about $800 worth of damage, and she does not deny she caused the damage (that, and there was a video recording of the parking lot). The police are called into school.

3

Ashlie's biggest concern is that her friend be treated with respect- Ashlie is loyal to a fault. Despite her protective nature, this incident is highly out of the norm for Ashlie, and it marks the first time she has ever had to talk to a police officer. In the back of her mind, Ashlie is worried about whether this incident will go on her permanent record or prevent her from going to college.

How should the law treat Jeremy, Katie, and Ashlie? Are they criminals? Juvenile delinquents? Young people who deserve to have a juvenile record, even if it is sealed because of their age? What kind of process should these youths endure? Should they hire lawyers, appear before juvenile judges, and be assigned probation officers? On the other hand, should they be given a pass? Chalk up their actions to youthful indiscretion? Further, who should decide how they are treated? School administrators? Police officers? County prosecutors? Their parents?

Juvenile courts were created to provide interventions for young people like Jeremy, Katie, and Ashlie in order to reduce the possibility of future law violations, or recidivism.(fn2) Once a youth is cited for an offense, several routes exist through which the state may respond. The traditional offender-offense focused method can be broken down into three primary phases: citation or detention, adjudication, and disposition. When a youth commits an offense, the youth may be cited or arrested by the responding officer. If the prosecuting attorney determines there exists enough evidence to successfully process the case, a petition is filed with the juvenile or county court and the youth appears before a judge in the adjudication stage. Following adjudication, the court may order a number of services prior to the disposition, including an investigation by probation to help the court determine the best course of action for the youth, an evaluation (e.g., psychological or mental health examination), probation supervision, or other services. Finally, during the disposition stage, the court may rely on the findings of the pre-disposition investigation to determine the best intervention for the youth, which may consist of probation, problem solving courts, or, in extreme cases, Youth Rehabilitation and Treatment Centers (YRTC) followed by re-entry programs. Although juvenile records are sealed in the state of Nebraska,(fn3) it is clear that the traditional, formal processing would lead to a much deeper penetration into and more extensive contact with multiple parts of the juvenile justice system.

Luckily for Jeremy, Katie, and Ashlie, a local county attorney offers these youths the opportunity to participate in a victim-youth conference (VYC) as part of a pre-diversion or diversion program. If

4

they successfully complete the VYC, and any other relevant terms, they will neither be "charged" nor adjudicated. The remainder of their stories will be discussed throughout this Article.

VYC is one of a number of practices known as "restorative justice." Restorative justice is a philosophy that has ancient roots in many different cultures,(fn4) as well as modern application in today's criminal contexts. Restorative justice programs give communities the opportunity to "actively and meaningfully participate in the criminal justice process,"(fn5) and the programs are dialogue-driven, holistic in scope, and open to a wide variety of...