More than zero: The cost of zero tolerance and the case for restorative justice in schools

Denver University Law Review

Volumn 77, Issue 4, 2000, Pages 795-812

  Haft, William ^a  

^a Hogan and Hartson   (United States)

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EID: 2342509276     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (129)

1. See Tracy Kidder, Among Schoolchildren (1989).
2. Id., passim.
3. Id. at 166-67.
4. Id. at 167.
5. See id. at 168.
6. See, e.g., Margaret Graham Tebo, Zero Tolerance, Zero Sense, ABA JOURNAL, Apr. 2000, at 41.
7. See, e.g., MICH. COMP. LAWS ANN. § 380.1311 (mandating permanent expulsion for students found in possession of a weapon on school grounds and for students found guilty of arson or rape).
8. See Clarence Page 'Zero Tolerance,' Zero Thinking, CHI. TRIB., Nov. 14, 1999, at 21 (describing the replaying of the videotaped brawl on national television). The students were involved in a brawl in the bleachers of a high school football game.
9. See, e.g., Kathleen Parker, Coddling Not Allowed: Pendulum Swings Back Toward Discipline, Responsibility, CHI. TRIB., Nov. 24, 1999 at 17 (asserting that Americans are fed up with "victimology" and praising school board's decision to expel the boys).
10. See, e.g., Eric Zorn, Chance at Change Must Outweigh All Else in Decatur, CHI. TRIB., Nov. 11, 1999 at 1 (arguing that expelled students should be returned to mainstream classes as soon as possible).
11. See Barry C. Feld, Rehabilitation, Retribution & Restorative Justice: Alternative Conceptions of Juvenile Justice, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 24 (Gordon Bazemore & Lode Walgrave eds., 1999); see generally Developments in the Law, Alternative Punishments: Resistance & Inroads, 111 HARV. L. REV. 1967, 1968-71 (1998) (discussing punitive trends in criminal law as a whole).
12. See Barry C. Feld, Rehabilitation, Retribution & Restorative Justice: Alternative Conceptions of Juvenile Justice, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 24 (Gordon Bazemore & Lode Walgrave eds., 1999); see generally Developments in the Law, Alternative Punishments: Resistance & Inroads, 111 HARV. L. REV. 1967, 1968-71 (1998) (discussing punitive trends in criminal law as a whole).
13. The issuance of the Safe School Study Report to Congress in 1978 is often identified as the "formal recognition of a serious national concern with the increasingly crime-ridden, unsafe conditions of American public schools." Julius Menacker & Richard Mertz, State Legislative Responses to School Crime, 85 ED. LAW REP. 1 (1993). See also Page, supra note 8, reporting that at least four out of every five high schools in the United States has been subject to a zero-tolerance policy since at least 1997.
14. See Governor Bill Owens, Announcement of "Putting Children First: A Plan for Safe & Excellent Schools," available at: http://www.state.co.us/gov_dir/govnr_dir/ChildrenFirstRemarks.htm.
15. See id.
16. See, e.g., Todd A. DeMitchell, Security Within the Schoolhouse Gate: An Emerging Fundamental Value in Educational Policy Making, 120 ED. LAW REP. 379, 382 (1997) (arguing that security now joins equity, efficiency, liberty, and quality as a fundamental educational value).
17. See Bill O. Heder, The Development of Search & Seizure Law in Public Schools, 1999 B.Y.U. EDUC. & L.J. 71, 114 (discussing restrictions on constitutional rights of school children); Dan Lungren, Three Cheers for Three Strikes, POL'Y REV., Nov.-Dec. 1996, at 34 (discussing effectiveness of three strikes law in California).
18. See Bill O. Heder, The Development of Search & Seizure Law in Public Schools, 1999 B.Y.U. EDUC. & L.J. 71, 114 (discussing restrictions on constitutional rights of school children); Dan Lungren, Three Cheers for Three Strikes, POL'Y REV., Nov.-Dec. 1996, at 34 (discussing effectiveness of three strikes law in California).
19. Incidents prompting proposal of such policies are likely to affect not only offenders, but all students in a school community through the narrowing of students' rights, particularly constitutional rights such as those protected by the Fourth Amendment. See Heder, supra note 16 at 113-14 (predicting that the substantial intrusions on student Fourth Amendment protections found permissible in recent Supreme Court decisions will only accelerate in light of drug and weapons incidents).
20. See, e.g., Developments in the Law, supra note 11 (discussing trends in restorative justice such as alternative sentencing as well as the political resistance to approaches that emphasize rehabilitation over punishment); Katherine L. Joseph, Victim-Offender Mediation, 11 OHIO J. DISP. RESOL. 207 (1996); Daniel W. Van Ness, New Wine & Old Wineskins: Four Challenges of Restorative Justice, 4 CRIM. L.F. 251 (1993).
21. See, e.g., Developments in the Law, supra note 11 (discussing trends in restorative justice such as alternative sentencing as well as the political resistance to approaches that emphasize rehabilitation over punishment); Katherine L. Joseph, Victim-Offender Mediation, 11 OHIO J. DISP. RESOL. 207 (1996); Daniel W. Van Ness, New Wine & Old Wineskins: Four Challenges of Restorative Justice, 4 CRIM. L.F. 251 (1993).
22. Comprehensive Drug Abuse Prevention & Control Act of 1970, Pub. L. No. 91-513 § 419 (codified as amended at 21 U.S.C. § 860 (1994)).
23. 21 U.S.C. § 860 (1994).
24. NATIONAL INSTITUTE OF EDUCATION, VIOLENT SCHOOLS - SAFE SCHOOLS: THE SAFE SCHOOL STUDY REPORT TO CONGRESS (1978).
25. Id. at iii.
26. Safe & Drug-Free Schools & Communities Act of 1986, Pub. L. No. 99-570 § 4102 et seq., 100 Stat. 3207 (1986).
27. Gun-Free School Zones Act of 1990, Pub. L. 101-647, § 1702, 104 Stat. 4844 (codified as amended at 18 U.S.C. § 922 (1994)).
28. Id.
29. See United States v. Lopez, 514 U.S. 549, 551 (1994) (holding the Gun-Free School Zones Act of 1990 unconstitutional).
30. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 665-66 (1995).
31. See Vernonia, 515 U.S. at 665-66.
32. See id. at 655-56.
33. Heder, supra note 16, at 113.
34. See generally Amy Mitchell Wilson, Public School Dress Codes: The Constitutional Debate, 1998 B.Y.U. EDUC. & L.J. 147; Note, Dena M. Sarke, Coed Naked Constitutional Law: The Benefits & Harms of Uniform Dress Requirements in American Public Schools, 78 B.U.L. REV. 153 (1998).
35. See generally Amy Mitchell Wilson, Public School Dress Codes: The Constitutional Debate, 1998 B.Y.U. EDUC. & L.J. 147; Note, Dena M. Sarke, Coed Naked Constitutional Law: The Benefits & Harms of Uniform Dress Requirements in American Public Schools, 78 B.U.L. REV. 153 (1998).
36. See Wendy Mahling, Secondhand Codes: An Analysis of the Constitutionality of Dress Codes in the Public Schools, 80 MINN. L. REV. 715, 719-20 (1996).
37. See Alyson Ray, A Nation of Robots? The Unconstitutionality of Public School Uniform Codes, 28 J. MARSHALLL. REV. 645 (1995).
38. See, e.g., Wilson, supra note 32, at 169-70 (discussing possible outcomes of constitutional determination based on balancing of students' expressive interest with government's interest in providing safe educational environment); Ray, supra note 34, at 645 (arguing that public school uniform codes violate students' First Amendment rights of free expression).
39. See id.
40. See Mahling, supra note 33, at 718-20 (reporting that educators who support dress codes have asserted an improved educational environment as a result of enhanced discipline, self-esteem, and classroom unity). One notable exception is the documented experience of the Will Rogers Middle School in Long Beach, California. The school reported a 32% drop in suspensions and a 36% drop in crime as well as a significant jump in its statewide ranking on a standardized algebra test. See Wilson, supra note 32, at 149.
41. See, e.g., CALIF. EDUC. CODE § 48915, MICH. COMP. LAWS ANN. § 380.1311, and NEB. REV. STAT. § 79-283.
42. See, e.g., CALIF. EDUC. CODE § 48915, MICH. COMP. LAWS ANN. § 380.1311, and NEB. REV. STAT. § 79-283.
43. See, e.g., CALIF. EDUC. CODE § 48915, MICH. COMP. LAWS ANN. § 380.1311, and NEB. REV. STAT. § 79-283.
44. See CALIF. EDUC. CODE § 48915(a).
45. President Clinton hailed his 1994 crime bill with its three-strikes provision as "one of his lasting achievements." Stephen Glass, Anatomy of a Policy Fraud, NEW REPUBLIC, Nov. 17, 1997, at 22. Recent crime reduction in both California and New York City has been attributed, in part, to three-strikes policies in those states. See Lungren, supra note 16; but see Editorial, Crime is Down All Over, N.Y. TIMES, Oct. 14, 1997, at A26 (suggesting that crime reduction may be a result of demographic changes).
46. President Clinton hailed his 1994 crime bill with its three-strikes provision as "one of his lasting achievements." Stephen Glass, Anatomy of a Policy Fraud, NEW REPUBLIC, Nov. 17, 1997, at 22. Recent crime reduction in both California and New York City has been attributed, in part, to three-strikes policies in those states. See Lungren, supra note 16; but see Editorial, Crime is Down All Over, N.Y. TIMES, Oct. 14, 1997, at A26 (suggesting that crime reduction may be a result of demographic changes).
47. 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 1.5, at 30-40 (1986) (discussing theories of punishment).
48. See, e.g., Owens, supra note 13 (asserting that "[e]veryone knows you do not bring a weapon anywhere near an airport. . . . Children must know without any doubt that the same rules apply to everyone."
49. See, e.g., See CALIF. EDUC. CODE § 48915(a)(2), MICH. COMP. LAWS ANN. § 380.1311(2), NEB. REV. STAT. § 79-283(3), (4).
50. See, e.g., See CALIF. EDUC. CODE § 48915(a)(2), MICH. COMP. LAWS ANN. § 380.1311(2), NEB. REV. STAT. § 79-283(3), (4).
51. See, e.g., See CALIF. EDUC. CODE § 48915(a)(2), MICH. COMP. LAWS ANN. § 380.1311(2), NEB. REV. STAT. § 79-283(3), (4).
52. See Shaw ex rel. Kolesnick v. Omaha Pub. Sch. Dist., 558 N.W.2d 807 (Neb. 1997); see also Minooka Boy's Knife Tests School, After-Hours Quarrel May Bring Expulsion, CHI. TRIB., Nov. 17, 1999 (reporting eighth-grade boy's possible one-year expulsion for carrying a pocket knife on school grounds).
53. See Kolesnick, 558 N.W.2d at 811.
54. See 1994 Neb. Laws 1274, 1281-82 (codified at NEB. REV. STAT. § 79-283).
55. See Kolesnick, 558 N.W.2d at 811.
56. See id. at 813-14.
57. See George F. Will, Six-Year-Old Harassers?, NEWSWEEK, Jun. 7, 1999, at 88.
58. See id. (mentioning that public school liability for sexual harassment has received significant attention from the Supreme Court in recent years). A jury awarded a former public school student in Alexandria, VA, more than $1,000,000 for his sexual abuse by a teacher. See Patricia Davis & Ann O'Hanlon, Alexandria Schools Liable for Sex Abuse; Jury Awards $1 Million To Victim Of Teacher, Washington Post, Mar. 11, 2000, at A01. The jury found that the school principal and other school officials had ignored reports of previous abuse by the teacher and signs that he might have been abusing the particular student. See id. See also Tamar Lewin, Kissing Cases Highlight Schools' Fears of Liability for Sexual Harassment, N.Y. TIMES, Oct. 6, 1996, at 22-23.
59. See id. (mentioning that public school liability for sexual harassment has received significant attention from the Supreme Court in recent years). A jury awarded a former public school student in Alexandria, VA, more than $1,000,000 for his sexual abuse by a teacher. See Patricia Davis & Ann O'Hanlon, Alexandria Schools Liable for Sex Abuse; Jury Awards $1 Million To Victim Of Teacher, Washington Post, Mar. 11, 2000, at A01. The jury found that the school principal and other school officials had ignored reports of previous abuse by the teacher and signs that he might have been abusing the particular student. See id. See also Tamar Lewin, Kissing Cases Highlight Schools' Fears of Liability for Sexual Harassment, N.Y. TIMES, Oct. 6, 1996, at 22-23.
60. See Lisa Petrillo, Zero Tolerance At Schools: One Strike & They Were Out: Was the Punishment Fair? You be the Judge . . ., SAN DIEGO UNION-TRIB., Nov. 24, 1995, at B1 (reporting that California's mandatory expulsion rule had resulted in punishment of children for carrying nail clippers, Swiss Army knives, and bottle openers, and that the state estimated the cost of expulsion at $20 million).
61. The negative effects of repressive policies tend to extend beyond the individual child and to the school community as a whole. See infra note 56 and accompanying text. See also Chicago's Alternative Schools Run Out of Room: Night Classes Slated to Keep Overflow Students in System, CHI. TRIB., Dec. 23, 1999 (reporting that it would be nearly impossible for Chicago Public Schools to offer any additional troubled students a second chance to complete their education).
62. See, e.g., LAWRENCE A. CHEMIN, THE AMERICAN COMMON SCHOOL: AN HISTORIC CONCEPTION 70-71 (1951) ("'It may be an easy thing to make a Republic, . . . but it is a very laborious thing to make Republicans.'" (quoting HORACE MANN, TWELFTH ANNUAL REPORT OF THE BOARD OF EDUCATION, TOGETHER WITH THE TWELFTH ANNUAL REPORT OF THE SECRETARY OF THE BOARD (Dutton & Wentworth, Boston, eds., 1849)); see id. at 59 ("'[T]he spirit of common schools - schools where the rich and the poor meet together on equal terms, where high and low are taught in the same house, the same class, and out of the same book, and by the same teacher - is a republican spirit. And this is a republican education.'") (quoting J. Orville Taylor, Common School Assistant. Vol. II (1837)).
63. See, e.g., LAWRENCE A. CHEMIN, THE AMERICAN COMMON SCHOOL: AN HISTORIC CONCEPTION 70-71 (1951) ("'It may be an easy thing to make a Republic, . . . but it is a very laborious thing to make Republicans.'" (quoting HORACE MANN, TWELFTH ANNUAL REPORT OF THE BOARD OF EDUCATION, TOGETHER WITH THE TWELFTH ANNUAL REPORT OF THE SECRETARY OF THE BOARD (Dutton & Wentworth, Boston, eds., 1849)); see id. at 59 ("'[T]he spirit of common schools - schools where the rich and the poor meet together on equal terms, where high and low are taught in the same house, the same class, and out of the same book, and by the same teacher - is a republican spirit. And this is a republican education.'") (quoting J. Orville Taylor, Common School Assistant. Vol. II (1837)).
64. See, e.g., LAWRENCE A. CHEMIN, THE AMERICAN COMMON SCHOOL: AN HISTORIC CONCEPTION 70-71 (1951) ("'It may be an easy thing to make a Republic, . . . but it is a very laborious thing to make Republicans.'" (quoting HORACE MANN, TWELFTH ANNUAL REPORT OF THE BOARD OF EDUCATION, TOGETHER WITH THE TWELFTH ANNUAL REPORT OF THE SECRETARY OF THE BOARD (Dutton & Wentworth, Boston, eds., 1849)); see id. at 59 ("'[T]he spirit of common schools - schools where the rich and the poor meet together on equal terms, where high and low are taught in the same house, the same class, and out of the same book, and by the same teacher - is a republican spirit. And this is a republican education.'") (quoting J. Orville Taylor, Common School Assistant. Vol. II (1837)).
65. See Colorado Comes Together, DENV. POST, Aug. 15 1999, at F4.
66. See Roger J.R. Levesque, The Right to Education in the United States: Beyond the Limits of the Lore & Lure of Law, 4 ANN. SURV. INT'L & COMP. L. 205, 248 (1997).
67. See id. (citing Florence M. Stone & Kathleen B. Boundy, School Violence: The Need for a Meaningful Response, 28 CLEARINGHOUSE REV. 453, 454, 456 (1994)). See also Gordon Bazemore, After Shaming, Whither, Reintegration: Restorative Justice & Relational Rehabilitation, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 165 (Gordon Bazemore & Lode Walgrave eds., 1999) (stating that "[sanctions that degrade and isolate the offender . . . weaken bonds that foster reintegration and ultimately heighten risks to public safety."); Pedro N. Noguera, Preventing & Producing Violence, 65 Harv. Educ. Rev. 189, 192-207 (1995) (arguing that "get tough" approaches fail to create safe environments because coercive strategies disrupt learning, increase mistrust, and encourage resistance to learning).
68. See id. (citing Florence M. Stone & Kathleen B. Boundy, School Violence: The Need for a Meaningful Response, 28 CLEARINGHOUSE REV. 453, 454, 456 (1994)). See also Gordon Bazemore, After Shaming, Whither, Reintegration: Restorative Justice & Relational Rehabilitation, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 165 (Gordon Bazemore & Lode Walgrave eds., 1999) (stating that "[sanctions that degrade and isolate the offender . . . weaken bonds that foster reintegration and ultimately heighten risks to public safety."); Pedro N. Noguera, Preventing & Producing Violence, 65 Harv. Educ. Rev. 189, 192-207 (1995) (arguing that "get tough" approaches fail to create safe environments because coercive strategies disrupt learning, increase mistrust, and encourage resistance to learning).
69. See id. (citing Florence M. Stone & Kathleen B. Boundy, School Violence: The Need for a Meaningful Response, 28 CLEARINGHOUSE REV. 453, 454, 456 (1994)). See also Gordon Bazemore, After Shaming, Whither, Reintegration: Restorative Justice & Relational Rehabilitation, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 165 (Gordon Bazemore & Lode Walgrave eds., 1999) (stating that "[sanctions that degrade and isolate the offender . . . weaken bonds that foster reintegration and ultimately heighten risks to public safety."); Pedro N. Noguera, Preventing & Producing Violence, 65 Harv. Educ. Rev. 189, 192-207 (1995) (arguing that "get tough" approaches fail to create safe environments because coercive strategies disrupt learning, increase mistrust, and encourage resistance to learning).
70. See Levesque, supra note 55, at 248 (citing ROBERT M. REGOLI & JOHN D. HEWITT, DELINQUENCY IN SOCIETY 313-23 (3d ed. 1997)).
71. See id. (citing David C. Broterton, The Contradictions of Suppression, 28 URBAN REV. 95, 99-113 (1996) (concluding from a two-year study of gangs in inner-city high schools that typical suppressive responses were futile and had unintended negative consequences for goals of democratic education)).
72. See id. (citing ROBERT M. REGOLI & JOHN D. HEWITT, DELINQUENCY IN SOCIETY 313-23 (3d ed. 1997) (arguing that tracking systems and conduct codes, among other repressive policies, contribute to delinquency)).
73. See generally Developments in the Law, supra note 11, at 1967-70 (discussing punitive trends in criminal justice); Feld, supra note 11, at 24-25 (discussing punitive trend specifically with respect to juvenile justice system as reflected in trying juvenile criminals as adults); Gordon Bazemore & Lode Walgrave, Restorative Juvenile Justice: In Search of Fundamentals & an Outline for Systemic Reform in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 59 (Gordon Bazemore & Lode Walgrave eds., 1999); Van Ness, supra note 18, at 257 (attributing trend to societal emphasis on maintaining security and public order); cf. LAFAVE, supra note 41, at 30-40 (1986) (identifying six theories of punishment: prevention, restraint, education, deterrence, retribution, and rehabilitation).
74. See Bazemore & Walgrave, supra note 60, at 48.
75. See id. at 49, 164; HOWARD ZEHR, CHANGING LENSES: A NEW FOCUS FOR CRIME & JUSTICE 181 (1990); Van Ness, supra note 18, at 259.
76. See Zehr, supra note 62, at 181.
77. See id
78. See id. at 188; Van Ness, supra note 18, at 259.
79. Bazemore & Walgrave, supra note 60, at 55.
80. Zehr, supra note 62, at 32 (concluding that "[t]his, then, is the ultimate irony, the ultimate tragedy). Those who have most directly suffered are not to be part of the resolution of the offense [because] . . . victims are not even part of [society's] . . . understanding of the problem." Id.
81. See Bazemore & Walgrave, supra note 60, at 45.
82. See Van Ness, supra note 18, at 253-55; see also Zehr, supra note 62, at 139-142 (discussing the Biblical notion of justice as one of making things right and moving toward "shalom").
83. See Van Ness, supra note 18, at 255-56 (noting restorative grounding of Japanese justice system and discussing the shift away from restorative justice in the British system).
84. See Bazemore & Walgrave, supra note 60, at 47-48 (discussing range of definitions and understandings).
85. Mediation workshops and programs are already familiar concepts in school communities nationwide. See, e.g., Glenda L. Cottam, Mediation & Young People, 29 CREIGHTON L. REV. 1517, 1522-24 (1996) (discussing various schools that employ mediation workshops and programs); Kelly Rozmus, Peer Mediation Programs in Schools, 26 J.L. & EDUC. 69, 81-83 (1997) (discussing evaluations of existing programs); William S. Haft & Elaine R. Weiss, Peer Mediation in Schools, 3 HARV. NEGOTIATION L. REV. 213, 213 (1998) (reporting estimates ranging from 5,000 to 8,500 for number of existing peer mediation programs in the United States). There are substantial differences between the restorative justice mediation process discussed in this article and the peer mediation process already common in schools. The most important distinctions relate to the seriousness of the offenses addressed through the process and the commensurate demands on mediator skill and training. These distinctions make peer mediation programs a generally inappropriate forum for addressing the potential range and seriousness of offenses for which victim-offender mediation is designed. See infra notes 88-91 and accompanying text; See MARK S. UMBREIT, VICTIM MEETS OFFENDER: THE IMPACT OF RESTORATIVE JUSTICE & MEDIATION 5 (1994).
86. Mediation workshops and programs are already familiar concepts in school communities nationwide. See, e.g., Glenda L. Cottam, Mediation & Young People, 29 CREIGHTON L. REV. 1517, 1522-24 (1996) (discussing various schools that employ mediation workshops and programs); Kelly Rozmus, Peer Mediation Programs in Schools, 26 J.L. & EDUC. 69, 81-83 (1997) (discussing evaluations of existing programs); William S. Haft & Elaine R. Weiss, Peer Mediation in Schools, 3 HARV. NEGOTIATION L. REV. 213, 213 (1998) (reporting estimates ranging from 5,000 to 8,500 for number of existing peer mediation programs in the United States). There are substantial differences between the restorative justice mediation process discussed in this article and the peer mediation process already common in schools. The most important distinctions relate to the seriousness of the offenses addressed through the process and the commensurate demands on mediator skill and training. These distinctions make peer mediation programs a generally inappropriate forum for addressing the potential range and seriousness of offenses for which victim-offender mediation is designed. See infra notes 88-91 and accompanying text; See MARK S. UMBREIT, VICTIM MEETS OFFENDER: THE IMPACT OF RESTORATIVE JUSTICE & MEDIATION 5 (1994).
87. Mediation workshops and programs are already familiar concepts in school communities nationwide. See, e.g., Glenda L. Cottam, Mediation & Young People, 29 CREIGHTON L. REV. 1517, 1522-24 (1996) (discussing various schools that employ mediation workshops and programs); Kelly Rozmus, Peer Mediation Programs in Schools, 26 J.L. & EDUC. 69, 81-83 (1997) (discussing evaluations of existing programs); William S. Haft & Elaine R. Weiss, Peer Mediation in Schools, 3 HARV. NEGOTIATION L. REV. 213, 213 (1998) (reporting estimates ranging from 5,000 to 8,500 for number of existing peer mediation programs in the United States). There are substantial differences between the restorative justice mediation process discussed in this article and the peer mediation process already common in schools. The most important distinctions relate to the seriousness of the offenses addressed through the process and the commensurate demands on mediator skill and training. These distinctions make peer mediation programs a generally inappropriate forum for addressing the potential range and seriousness of offenses for which victim-offender mediation is designed. See infra notes 88-91 and accompanying text; See MARK S. UMBREIT, VICTIM MEETS OFFENDER: THE IMPACT OF RESTORATIVE JUSTICE & MEDIATION 5 (1994).
88. Mediation workshops and programs are already familiar concepts in school communities nationwide. See, e.g., Glenda L. Cottam, Mediation & Young People, 29 CREIGHTON L. REV. 1517, 1522-24 (1996) (discussing various schools that employ mediation workshops and programs); Kelly Rozmus, Peer Mediation Programs in Schools, 26 J.L. & EDUC. 69, 81-83 (1997) (discussing evaluations of existing programs); William S. Haft & Elaine R. Weiss, Peer Mediation in Schools, 3 HARV. NEGOTIATION L. REV. 213, 213 (1998) (reporting estimates ranging from 5,000 to 8,500 for number of existing peer mediation programs in the United States). There are substantial differences between the restorative justice mediation process discussed in this article and the peer mediation process already common in schools. The most important distinctions relate to the seriousness of the offenses addressed through the process and the commensurate demands on mediator skill and training. These distinctions make peer mediation programs a generally inappropriate forum for addressing the potential range and seriousness of offenses for which victim-offender mediation is designed. See infra notes 88-91 and accompanying text; See MARK S. UMBREIT, VICTIM MEETS OFFENDER: THE IMPACT OF RESTORATIVE JUSTICE & MEDIATION 5 (1994).
89. See UMBREIT, supra note 72, at 5.
90. See Bazemore & Walgrave, supra note 60, at 49 (defining "victim" to include the "victimized community").
91. See Bazemore & Walgrave, supra note 60, at 51-52.
92. See John Braithwaite & Christine Parker, Restorative Justice is Republican Justice, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 115-16 (Gordon Bazemore & Lode Walgrave eds., 1999) (stating that, in the criminal justice context, "victims and offenders should always have a right to walk out of a conference and go to court").
93. See UMBREIT, supra note 72, at 7-8. In addition to ensuring that the parties are willing participants, these meetings give the parties an opportunity to become familiar with the process and to understand their roles and responsibilities. See id. They also give the mediator(s) an opportunity to establish rapport and to become familiar with the issues that the mediation will need to address. See id.
94. See id. at 8.
95. See id.
96. See id. In court-annexed restorative justice processes, it is usually a prerequisite for referral that the offender acknowledge responsibility for having committed the offense. See id. at 7 ("Many programs accept referrals after a formal admission of guilt has been entered with the court.").
97. See Harry Mika, The Practice & Prospect of Victim-Offender Programs, 46 SMU L. REV. 2191, 2197-98 (1993).
98. See id.
99. See id. at 2198; see, e.g., UMBREIT, supra note 72, at 61-71 (characterizing restitution agreements from mediations in four U.S. victim-offender programs according to categories of financial restitution, personal service, and community service).
100. See ZEHR, supra note 62, at 191-204.
101. See id. 181.
102. See supra note 56 and accompanying text.
103. See UMBREIT, supra note 72, at 83 (finding that 83% of victims in study reported that their case was handled fairly as compared with 62% for victims whose cases were not referred to mediation).
104. See id. at 109-111.
105. See Mara F. Schiff, The Impact of Restorative Interventions on Juvenile Offenders, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 331 (Gordon Bazemore & Lode Walgrave eds., 1999).
106. See id. at 333; UMBREIT, supra note 72, at 115.
107. See UMBREIT, supra note 72, at 17.
108. See id. at 22.
109. See JOHN J. DIIULIO, JR., NO ESCAPE: THE FUTURE OF AMERICAN CORRECTIONS 66-67 (1991). (suggesting that deeply rooted incarcerative sentiments of the American public will make it difficult for alternative programs to gain support).
110. See supra note 53 and accompanying text.
111. See generally Braithwaite & Parker, supra note 76 at 103-22 (arguing that goals of restorative justice, including justice through face-to-face action, are consonant with fundamental republican principles of non-domination).
112. See, e.g., Susan Guarino-Ghezzi & Andrew Klein, Protecting Community: The Public Safety Role in a Restorative Juvenile Justice, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 204-05 (Gordon Bazemore & Lode Walgrave eds., 1999) (discussing community service component of restorative justice program in Allegheny County, Pennsylvania).
113. See Bazemore, supra note 56, at 174 (stating that "[u]nlike conventional adults, most youths lack this sense of 'connectedness.' They do not hold positions of responsibility in work, community or family groups that allow them to make meaningful contributions.").
114. See id. at 168-69 (reporting that "sanctioning processes are more likely to enhance rehabilitation/reintegration when they involve family, victims and key members of the offender's community directly in the process"). Bazemore also notes that students' primary "connectedness" occurs through their identity as students in the school environment; accordingly, "this reality puts a great deal of pressure on educational institutions to forge a link between the 'moratorium' experience of adolescence and productive adult life in order 'to allow youths to identify with new roles of competency and invention.'" Id. at 174 (quoting ERIK ERICKSON, IDENTITY, YOUTH, & CRISIS 138 (1968)).
115. Cf. Feld, supra note 11, at 37 (posing the question: "If restorative justice envisions informal enforcement of 'community' norms, who defines the 'community' or the 'norms'?"). The Decatur, Illinois incident, discussed supra notes 8-10 and accompanying text, provides a concrete example of where a defined injury to the community might have been addressed through restorative justice. As part of the fallout from the fights, classes were cancelled for a week; the students lost a week of their educational lives but the offenders' expulsion provided no remedy for this injury. See Bob Greene, Who'll Say 'I'm Sorry' to the Other Decatur Students? CHI. TRIB., Nov. 22, 1999, at 1 (noting that most of the students were guilty of nothing but they too were kept out of school).
116. See UMBREIT, supra note 72, at 117.
117. See Van Ness, supra note 18, at 271 (arguing that restorative justice requires greater cooperation between communities and civil government in order to be successful). See also Guarino-Ghezzi & Klein, supra note 96, at 195-96 (discussing ways in which traditional justice systems create rifts between law enforcement officials and the communities that they are seeking to protect); Russ Immarigeon, Restorative Justice, Juvenile Offenders & Crime Victims: A Review of the Literature, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 313-14 (Gordon Bazemore & Lode Walgrave eds., 1999) (stating that particular models of restorative justice, such as "family group conferences" have shown particular promise).
118. See supra note 72 and accompanying text.
119. See UMBREIT, supra note 72, at 77 (observing that, in at least one program reviewed, "frequently the victim's satisfaction was directly related to the mediator"); see also Cottam, supra note 72, at 1538 (discussing how the mediator should give a victim special attention); Stephanie A. Beauregard, Note & Comment, Court-Connected Juvenile Victim-Offender Mediation: An Appealing Alternative for Ohio's Juvenile Delinquents, 13 OHIO ST. J. ON DISP. RESOL. 1005, 1020 (1998) (noting importance of high-quality mediators to the success of court-annexed programs).
120. See Haft & Weiss, supra note 72, at 237 (peer mediation typically responds to disputes that would not implicate anything beyond petty criminal offenses and are characterized as "he said, she said" gossip-based conflicts). But see id. at 238 (noting that in at least one instance, more sophisticated programs have evolved to address violent conflicts, arising from racial tensions).
121. 20/20 (ABC television broadcast, Apr. 26, 1999) (describing mediation between drunk driver and victim's family).
122. Attempted Murder: Confrontation (HBO television broadcast, Feb. 4, 1991) (describing mediation between convicted attempted murderer, Tommy Brown, and the victim, Gary Smith).
123. See Jennifer Gerarda Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 EMORY L.J. 1247, 1275-79 (1994) (arguing that the inherent structure of the mediation process forces victims to de-emphasize their own emotions caused by the offense and instead pressure victims toward forgiving the offender). One dissatisfied participant of a victim-offender mediation characterized the additional burden as "like being hit by a car and having to get out and help the other driver when all you were doing was minding your own business." ROBERT B. COATES & JOHN GEHM, VICTIM MEETS OFFENDER: AN EVALUATION OF VICTIM-OFFENDER RECONCILIATION PROGRAMS 9 (1985).
124. See Jennifer Gerarda Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 EMORY L.J. 1247, 1275-79 (1994) (arguing that the inherent structure of the mediation process forces victims to de-emphasize their own emotions caused by the offense and instead pressure victims toward forgiving the offender). One dissatisfied participant of a victim-offender mediation characterized the additional burden as "like being hit by a car and having to get out and help the other driver when all you were doing was minding your own business." ROBERT B. COATES & JOHN GEHM, VICTIM MEETS OFFENDER: AN EVALUATION OF VICTIM-OFFENDER RECONCILIATION PROGRAMS 9 (1985).
125. See Brown, supra note 107, at 1288.
126. See id.
127. See Bazemore, supra note 56, at 181.
128. See supra notes 1-5 and accompanying text.
129. See Owens, supra note 13.