Crime and Punishment

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In our society’s criminal justice system, justice equals punishment. 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 with cases of severe
violence, including homicides. My qualifications for this work include training and experience
as a social worker and as a lawyer, fifteen years as a mediator, trainer and program consultant,
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 (VOMP), also known as Victim-Offender Reconciliation
Programs (VORP) 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 do not experience court-ordered
restitution as a moral obligation. It seems like just one more fine being levied against them.
When the restitution obligation is reached voluntarily and face-to-face, it is experienced by
offenders 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 offender and the victim 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 life. 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, 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 many 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. 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.