Diversion from Juvenile Court - Columbia Law School

Restorative Justice Class 19 CASE OF THE DAY Facts 14 year old boy completes class assignment to write a song and put your feelings into it Song fantasizes about killing his mother, the vice principal, and police Suspended from school Prosecutor filed delinquency charges alleging terroristic threats Boy held in detention for eight days, ordered to undergo psychiatric and psychological tests, and the home of his

grandmother (legal guardian) was searched School official justified legal intervention and suspension by saying that the boy was reaching out for help Boy has strained relationship with his mother, parents are divorced, custody entanglements Boy is in the Sundown disciplinary program His psychiatrist encouraged him to write as therapeutic task Issues What are the schools special interests in a post-Columbine world? Are these interests sufficient to justify school actions (suspension, referral to police)

How should such threats be evaluated? What developmental, cultural, and other factors should be integrated in assessing the threat? [Note Grandmothers statement distinguishing Erics behavior from Columbine kids] How does threat assessment translate into legal action in the juvenile court? Is there a discount? Did he cause emotional or psychological harm to other students or school staff with this threat? How would you calibrate the juvenile courts response (detention, search of grandmothers home, placement

in alternative school that is far from home)? Is the intrusion and deprivation of liberty merited by the boys prior record and other factors relevant to detention decisions? Did the publicity of the case influence the prosecutor? Would Eric be eligible for a Restorative Justice alternative? Why or why not? RESTORATIVE JUSTICE Cultural Origins Rooted in traditions outside the Common Law, essentially a non-Western model of justice

Communitarian principles Distinctions from post-Gault juvenile courts Accountability, victim voice supercede statutory or normative notions of retributive punishment make peace between parties, repair harm Interventions calibrated to ensure community protection Developmentally constructive interventions Forum Vengeance, punishment, and deterrence are set aside as animating philosophies for forming the

response All direct parties to the offense are included, legal institutions play complementary role Therapeutic process where recognition of harm caused should trigger empathetic response, accountability measures reinforce community obligations Therapeutic value for victim and offender Community articulation of harm and responses broadens and strengthens the legitimacy of the moral claim

Statutory Approaches MN, DE and FL Statutes Ties to juvenile court Deferred prosecution, not a separate legal forum and proceeding Is the retention of coercion at odds with the communitarian principles of RJ? Parental role and obligations Developmentally right, but biased toward better resourced families Reliance on contract seems to formalize the therapeutic content of the proceeding is this

theoretically sound? Legal liability if sanctions are not completed Confidentiality, admissibility of RJ proceedings in juvenile court hearing? Risks? Disparate treatment? Net widening? Efficacy tied to value of interventions DESIGN TASK Propose a RJ Program for the Manhattan Family Court

Eligibility and Statutory Authority Role of Counsel, Corporation Counsel Role of Court Role of Parents Who represents community for victimless crimes? Staffing Forum -- Beyond Mediation Sanctions and Interventions