“Children are the world’s most valuable resource and its best hope for the future.”1
On August 24, 2009, the U.S. Department of Justice (DOJ) publicly released a report following a two-year investigation into allegations of excessive force and deprivation of essential services in four juvenile placement facilities in New York State. The report indicated that if these shortcomings were not addressed, the DOJ would sue the state. Following the onset of the investigation and prior to the release of the DOJ report, in September 2008, then New York Governor David A. Paterson convened the Task Force on Transforming New York’s Juvenile Justice System (the “Task Force”). In December 2009, the Task Force released recommendations to reform the state’s juvenile placement process. In July 2010, Governor Paterson announced that New York State had executed a settlement agreement with the DOJ to significantly improve oversight and operations at the placement facilities that were subject to DOJ investigation. However, the current reform effort only begins to addresses the fundamental problems of New York State’s juvenile justice system. There is an opportunity for the state to undertake more sweeping, and potentially more effective, reforms.
The Task Force recommendations mainly focus on redefining the conditions of confinement, sending fewer youth to jail, and assisting juveniles in reentering the community. The recommendations only marginally address the needs of the first-time youthful offenders charged with low-level offenses—those that generally do not warrant a jail sentence yet result in a criminal record.2 These at-risk youths should be given a second chance—an opportunity to avoid a criminal record conditioned on fulfilling worthwhile civic obligations. The purpose of this article is to show that the Center for Court Innovation’s youth court provides such an opportunity, thereby addressing the shortcomings of the reform effort. The youth court employs a problem-solving justice approach to encourage youthful offenders to take responsibility for their actions and repair harm caused by their behavior. Thus, youth courts address problems that underlie offending behavior and help to reduce recidivism.
Part II of this article will discuss the therapeutic framework of problem-solving justice, and how the Center for Court Innovation employs problem-solving justice approach to combat societal ills. Part II will also introduce this approach in the juvenile justice context, and will discuss a typical youth court model and how the Center for Court Innovation has adopted and expanded this model by surveying each of the Center’s youth courts. Finally, Part III will evaluate the success of the Center’s youth courts and how these courts meet the needs of youthful offenders that are otherwise unaddressed by the current reform effort.
II. Problem-Solving Justice and The Center for Court Innovation
A. Theoretical Framework
“Beginning in the last decade of the twentieth century, partially in response to widespread dissatisfaction within the legal community, a new movement in law has emerged—a movement toward law as a healing profession.” The University of California, Santa Barbara sociology professor has identified two threads in this movement—therapeutic justice and restorative justice.3 The term “therapeutic justice” has been defined as “the use of social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects.”4 A primary focus of therapeutic justice is that it “emphasizes the need to address the root causes of a specific offender’s criminality, to treat the offender’s problems and to return him to the community as a responsible citizen.”5 Legal commentators have defined “restorative justice” as focusing on repairing the relationships between the victim, the community, and the offender, to promote a sense of accountability. “The sweeping goal of restorative justice is to change how society responds to crime.”6 Together, therapeutic justice and restorative justice are associated with the holistic approach used by the problem-solving courts. This approach also lies at the core of the operation of the youth court.
Restorative justice focuses on encouraging offending youth to take responsibility for their actions and repair harm caused by their behavior. A youth court does not determine innocence or guilt; rather, it gives offenders an opportunity to earn a “second chance”—to have charges dismissed or never filed at all—contingent upon compliance with the youth court’s sanctions. As a prerequisite for the case being heard, the respondent agrees to take responsibility for the offense that has brought him or her before the youth court.7 Therapeutic justice focuses on addressing problems that underlie the offending behavior. In youth court, each of the sanctions given to respondents—such as participation in a workshop or community service—is geared toward addressing the particular respondent’s issues and/or interests. Accountability and modification of an offender’s behavior together represent the holistic approach to preventing recidivism and helping at-risk youths to become assets to their community instead of liabilities.
B. The Center for Court Innovation—Champion of Problem-Solving Justice
The Center for Court Innovation (the “Center”) is one of today’s leaders in problem-solving justice. The Center grew out of a single experiment, the Midtown Community Court, which was created in 1993 to address low-level offenses in and around Times Square. The Midtown Community Court project achieved a measure of success,8 thus leading the court’s planners, with the support of New York State’s then Chief Judge, Judge Judith S. Kaye, to establish the Center in 1996 to serve as an engine for ongoing court reform in New York.9 In 1996, the Center opened New York City’s first drug treatment court where defendants would plead guilty at the outset with the understanding that, after completion of court-mandated treatment, the court would vacate the plea and dismiss the charges, or reduce the sentence. The drug court model was subsequently adopted to serve other litigants. Today, the Center’s projects include domestic violence courts that focus on improving victim safety and enhancing defendant accountability, reentry courts that help ex-offenders successfully transition back to their communities, and other programs that focus on aiding victims, changing the behavior of offenders, and improving public safety.
C. The Center for Court Innovation—Problem-Solving Justice for Young People
In the late 1990s, the Center was leading an effort in Red Hook, Brooklyn, to create a community-based justice center modeled after the Midtown Community Court in Manhattan. As part of a community-needs assessment, planners from the Center engaged in extensive discussion with neighborhood residents and leaders. One of the messages that emerged from these conversations was the desire of local residents for some sort of early intervention for troubled youth. In particular, residents lamented that New York City’s traditional system for handling the lowest level cases of juvenile delinquency was obsolete. In suburban or rural areas, offenses like vandalism, fighting, and other mischief were typically referred to juvenile or family courts. However, in New York, when a young person was picked up for a minor offense, police were required to note the incident in their “youth detention (YD) card”10 files and then call the offender’s parents, on the assumption that discipline would take place at home. The process was the vestige of an earlier era, one in which police officers were intimately familiar with a precinct’s residents. However, the times have changed; parents are sometimes absent, distracted, or otherwise unable to exercise any meaningful control over their children’s behavior.
The planners recognized an opportunity in the YD card system. For many young people, the card serves as an early warning of more serious trouble. A court intervening at this stage could hold offenders accountable while getting them linked to social services and perhaps even provide a course for these youth to give back to the community. To turn this idea into a reality, planners from the Center partnered with the Brooklyn District Attorney’s Office and Good Shepherd Services to create a specialized diversion program that would use court-like procedures in a courtroom setting that would serve as a non-binding, informal alternative to the traditional justice system. The Center’s first youth court was launched in 1998.
III. The Center for Court Innovation’s Youth Courts
A. How a Typical Youth Court Works
Like most good ideas, the idea of youth court (also known as a teen court or peer court) is a borrowed one. Two of the most often used youth court models are an adult-model and a peer-model. An adult-model is a youth court in which adults are largely responsible for managing the court process and the courtroom dynamics (youths may question the defendant, but an adult judge determines sentencing). Conversely, a peer-model is a youth court that relies heavily on youth themselves for courtroom management, including allowing youth to act as judges. A peer-model has been considered the more successful of the two. “Adolescents crave peer acceptance and peer approval; the peer-model process takes advantage of this naturally powerful incentive.”11
A typical path for a young offender through youth court starts when the juvenile court judge, the law enforcement officer, the probation officer, or the school offer the first-time youth offender a chance to complete the youth court program as a voluntary alternative to the formal juvenile justice system. If the youth accepts, a referral is sent to the local youth court coordinator. Most youth courts require an admission of guilt, and the proceedings are limited to sentencing hearings. Youth courts are otherwise similar to regular courts in that the offender goes through an intake process, a preliminary review of charges, a court hearing, and sentencing. The main difference is that in a youth court, young volunteers, under adult supervision, fill many of the roles normally reserved for adults, including clerks and bailiffs, prosecutors, defense attorneys, jurors, and sometimes judges. Furthermore, the waiting period from the time when a youth is charged with an offense to the hearing date ranges from two to four weeks; most hearings take fifteen minutes to one hour and completion of the disposition requirements takes thirty to ninety days on average.
B. The Center’s Expansion of the Peer-Model Youth Court
The Red Hook Youth Court planners chose to utilize the peer-model in its youth court, with certain modifications. As in other youth courts, a young offender’s involvement with the Red Hook Court begins with a referral. Youth courts accept referrals for diversion from a range of sources. Police officers can send young people, usually first-time offenders, to youth courts rather than arresting them and putting them on probation. Probation officers can use youth courts to justify adjusting a case, and give a teenager an opportunity to answer for a bad judgment call before a petition filed in family court is permanently on the youth’s record. Schools can use youth courts as an alternative for school disciplinary matters, holding students accountable for problematic behavior without suspension or other exclusionary disciplinary actions. Youth court staff contact each young person and his or her guardians to describe the youth court process, and schedule a hearing date for those who agree to participate.12
One particular source of referrals that warrants special mention is the criminal court. There is no statutory provision in New York that specifically provides for diversion to youth court, but judges have made use of their discretion to adjourn cases in contemplation of dismissal (ACD) either before or after youth court participation. While defendants must accept responsibility for the actions underlying the charges as a condition to participate in youth courts, the referring criminal courts have agreed that statements made in youth court cannot be used should the case later end up before the criminal court. If a young person does not complete the youth court sanction or is arrested during the six-month ACD period, the case will be sent back to the referring court for regular processing.13
To ensure respondents are truly judged by their peers, youth court members are drawn from students who range in age, interests, and academic achievement. While an applicant must be enrolled in school or a GED program, there are no academic requirements. In order to be eligible to serve as a youth court member, a young person receives thirty hours of pre-service training on the justice system, youth court operations and protocol, critical thinking, precision questioning, and active listening. An applicant must subsequently pass the youth court “bar exam”—an exam testing knowledge acquired in training. Members serving on the youth court earn $100 per month for five hours of service per week.14
The Center also departed from familiar youth court models by having an active jury. All participants receive extensive training to qualify for service in the specific court positions: judge, bailiff, community advocate, youth advocate, and juror. It is the jurors, however, who carry the weight of the responsibility; although anyone is allowed to question the offender, jurors are expected to take the lead. In addition to acting as fact-finder, their questions are also expected to elicit a clear picture of the offender, how he/she gets along with family and in school, what specifically led to the commission of the offense, and how he/she thinks the offense has impacted him/her, his/her family, and the community. After considering all of the information, the jury decides on a fair and appropriate sanction that holds the youth accountable and seeks to repair the harm done to the community.15
Sanctions typically include community service, letters of apology, and skill-building workshops. Youth court staff work closely with respondents to ensure that they complete sanctions as mandated. Successful completion of sanctions typically results in a favorable disposition of the case by the referring entity. Some services, such as conflict resolution workshops, may also be part of a respondent’s sanctions. Youth courts also strive to link respondents to training and after-school programs to help them avoid further disciplinary action in their schools and communities.16
As discussed in Part I, the problem-solving justice approach lies at the core of the operation of the youth court. By questioning respondents on the facts of the offense and how they think the offense has impacted themselves, their families, and the community, youth court members apply the restorative justice approach—making offenders aware of the impact of their conduct on others. The youth court further facilitates this approach by providing respondents with opportunities to repair the harm that they caused. By questioning respondents about their interests, hobbies, and how they get along with family and in school, the jurors employ the therapeutic justice approach and identify the underlying problems that led to the offense and identify specific needs of the youth. Moreover, for each respondent the jurors select sanctions that aim to repair the particular harm caused and workshops that address the underlying problems that led to the offense.
The Center is the only organization that operates youth courts on a large scale within New York City.17 It runs youth courts in Brooklyn (Brownsville, Greenpoint, and Red Hook), Queens (Jamaica), Staten Island, Manhattan (Harlem), and Newark, New Jersey. While each of the Center’s youth courts varies in its response to the needs and resources of the community, each court incorporates accountability, access to help, and peer leadership.
C. Evaluating the Success of the Youth Court Model
As an institution, the Center strives to measure the success of its youth courts in a number of ways, including youth compliance with court sanctions, recidivism, and later participation in a youth court training program. On average, about ninety percent of respondents who appear before one of the youth courts fulfill their obligations with the youth court and subsequently have the criminal charges dismissed or never filed.18
Despite the fact that the Center’s youth courts have been successful, there are still challenges in evaluating its success. Although the youth court staff calls former respondents every six months, when the contact information changes the line of communication is often cut. And while some families are happy to give updates, and willing to give honest ones, there is no mechanism for fact-checking, which means the youth court staff do not have an empirical follow-up system from which to evaluate ensuing events such as recidivism. Most of the successes are recorded anecdotally.19
One success story is that of Danny, a ninth grader who first came to the Greenpoint Youth Court as a respondent in mid-2010. He was nervous about the hearing—he felt that adults never believed him, but testifying in front of eight of his peers put him at ease. As one of the sanctions, he was given a choice between completing community service and returning to observe a youth court hearing. The youth court intrigued Danny, so he chose to return. Upon returning to observe a hearing, Danny began to realize that these young people were there to help other young people like him stay out of trouble and work to achieve goals. Danny signed up for the youth court training. Frankie, a twelfth grader and a Greenpoint Youth Court member for almost two years, met Danny at the training in September 2010. Initially, Frankie did not think that Danny was serious about the youth court training. Even Danny himself later admitted that his transition from a respondent to a youth court member was not an easy one. Fortunately, Danny did not miss a single session during the course of the required training, and subsequently passed the youth court “bar exam.”20
It is axiomatic that a criminal record enormously affects a young person’s life—his or her chances of staying in school, future employment, and even eligibility for public benefits.21 New York State’s current efforts at juvenile justice reform focus primarily on redefining the conditions of confinement, sending fewer youth to jail, and assisting juveniles in re-entry to the community. However, these goals only marginally address the needs of first-time youthful offenders charged with low-level offenses that do not warrant a jail sentence yet call for a criminal record. The Center’s youth courts are an ideal vehicle to remedy these shortcomings. By capitalizing on the natural and powerful force of peer pressure to compel young offenders to comply with sanctions, repair harm done to the community, and improve their lives, the Center diverts these at-risk youth from the purely punitive juvenile and criminal models in place. By teaching young people accountability and the importance of repaying the community, and by helping them deal with problems that underlie offending behavior and providing guidance, the Center’s youth courts are truly the courts of second chances.
* 2012 J.D. candidate New York Law School. The author would like to thank Carlin Meyer, Professor of Law and Director of the Diane Abbey Law Center for Children and Families at New York Law School, and Alfred Siegel, the Deputy Director of the Center for Court Innovation, for their guidance and encouragement in writing this article.
1 John F. Kennedy, UNICEF Appeal, John F. Kennedy Presidential Libr. and Museum (July 25, 1963), available at http://www.jfklibrary.org/Research/Ready-Reference/JFK-Miscellaneous-Information/Appeal-UNICEF.aspx.
2 See Julie Bosman, City Signals Intent to Put Fewer Teenagers in Jail, N.Y. Times, Jan. 21, 2010, at A31, available at http://www.nytimes.com/2010/01/21/nyregion/21juvenile.html (“Under the new plan, city officials will more frequently recommend to a judge that a young person be allowed to return home, provided the family submits to intensive visits by therapists and social workers supervised by the Administration for Children’s Services.”).
3 Susan Daicoff, Law as a Healing Profession: The “Comprehensive Law Movement,” 6 Pepp. Disp. Resol. L.J. 1, 1–3 (2006).
4 Hon. Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America, 74 Notre Dame L. Rev. 439, 443 (1999) (quoting Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psychol. Pub. Pol’y & L. 193, 196 (1995)).
5 Teresa W. Carns et al., Therapeutic Justice in Alaska’s Courts, 19 D. Alaska L. R. 1, 5 (2002).
6 Jennifer L. Kerrigan, “It’s Not World Peace, But . . .” Restorative Justice: Analysis of Recidivism Rates in Campbell Law School’s Juvenile Justice Project, 30 Campbell L. Rev. 339, 342 (2008) (quoting Howard Zehr, The Little Book of Restorative Justice 58 (2002)).
7 In a youth court, offenders are referred to as respondents.
8 Community courts are neighborhood-focused courts in which the justice system partners with local stakeholders, such as residents and merchants, to target quality-of-life offenses like prostitution, graffiti, and shoplifting. See Rehka Mirchandani, Beyond Therapy: Problem-Solving Courts and the Deliberative Democratic State, 33 Law & Soc. Inquiry 853, 854–66 (2008).
9 See Judith S. Kaye, Delivering Justice Today: A Problem-Solving Approach, 22 Yale L. & Pol’y Rev. 125 (2004).
10 David C. Anderson, Ctr. for Court Innovation, Kids, Courts and Communities: Lessons from the Red Hook Youth Court 2–3 (2001), http://www.courtinnovation.org/sites/default/files/kidscourtscommunities.pdf.
11 Jeffrey A. Butts & Jennifer Ortiz, Teen Courts—Do They Work and Why?, 83 N.Y. St. B.J. 18, 20 (Jan. 2011).
12 Interview with Alfred Siegel, Deputy Dir., Ctr. for Court Innovation, in N.Y.C., N.Y. (Feb. 23, 2011).
13 See Nancy Fishman, Youth Court as an Option for Criminal Court Diversion, 83 N.Y. St. B.J. 38 (Jan. 2011).
14 Siegel, supra note 13.
18 Interview with Beth Broderick, Greenpoint Youth Court Program Dir., Ctr. for Court Innovation, in Brooklyn, N.Y. (Feb. 24, 2011).
21 See Judith S. Kaye, Youth Courts—An Introduction to the January 2011 Journal, 83 N.Y. St. B.J. 10 (2011).