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Balanced and restorative justice in Illinois


By Daniel Dighton

Following years of debate over the direction and effectiveness of juvenile justice in Illinois, a major overhaul of the system took effect Jan. 1.
The Juvenile Justice Reform Act of 1998 adopts a balanced and restorative justice model for Illinois' juvenile justice system. The intent of this approach is to balance the needs of the offender with those of the victim and the safety of the community.
The new provisions, also known as the Juvenile Justice Reform Provisions of 1998, try to strike a balance between the juvenile justice system's longstanding orientation toward rehabilitation and the more recent trend toward a more punitive system that holds juveniles accountable for their actions. 
"It really is a third alternative, or approach, to doing things," said Cook County Assistant State's Attorney Randall Roberts, a supervisor in the delinquency division of the state's attorney's office and one of the principal architects of the legislation.
The extensive changes span several statutes, from provisions on juvenile records under the Children and Family Services Act, to motor vehicle offenses under the Illinois Vehicle Code. But the most significant changes are in the delinquency statute of the Juvenile Court Act (705 ILCS 405, Article V). 

Purpose and policy clause 

A key change to the delinquency statute is the adoption of a purpose and policy clause that embraces the balanced and restorative justice model for juvenile justice in Illinois.
"That's going to provide a lot more specific guidance to the judges, as well as others who work in the system," Roberts said of the purpose clause. 
Adopted in some form by more than a dozen states in recent years, balanced and restorative justice is a philosophy that seeks to give equal attention to three competing interests: the needs of the juvenile offender, the rights and needs of the victim, and the safety of the community. The approach emphasizes that harm has been done to the victim and the community, and that they, as well as the offender, must be restored to a state of well-being.
Cook County Juvenile Court Judge Christopher Donnelly already was taking a restorative justice approach in his courtroom before the new law took effect. He said he doesn't anticipate major changes as a result of the new provisions. But Donnelly agreed that having the purpose clause would be beneficial. "It gives everyone a better idea of what we're trying to accomplish," he said. 
Donnelly said his attitude toward the juvenile offender has been, "you've done something wrong, you've got to make it right," which is at the heart of restorative justice.
He already involves victims in his courtroom proceedings - one of the key points of restorative justice - and he makes offenders apologize to their victims after sentencing. After that, "I feel the victim feels a little better about things," Donnelly said. 
The apology is a step toward healing that is important for both parties, he said, adding, "They still have to live in the same neighborhood, typically." 
For nearly 100 years the nation approached juvenile justice by emphasizing the needs of the youthful offender. Beginning with the first juvenile court, established in Cook County in 1899, juvenile justice systems adopted the philosophy that children should be treated differently from adults. The belief was always that minors had not matured enough to be responsible for their actions and, through rehabilitative efforts, they could be rescued from the criminal path. 

Shift in attitudes 

In the 1980s, as the behavior of the worst young offenders turned more violent, the rehabilitative sentiment began to change. State after state began adopting more punitive laws for younger and younger offenders. By the mid-1990s, virtually every state, Illinois included, had adopted laws transferring violent juveniles to adult criminal court. 
With the effectiveness of the state's juvenile justice system under scrutiny, and with sensational crimes by juveniles making headlines on a recurring basis, legislators decided to revamp Illinois' approach to juvenile justice.
The Legislative Committee on Juvenile Justice was created for that purpose in 1994, and in spring 1996 the committee submitted its report of findings and recommendations. At about the same time, a draft version of a juvenile justice reform bill was completed. The legislature later turned to the Illinois State's Attorneys' Association to redraft the proposal. 
Following much debate and compromise over issues such as funding and transfers to adult court, the legislature passed Senate Bill 363 in January 1998. Gov. Jim Edgar issued an amendatory veto, which the legislature accepted in May 1998. The governor's changes focused primarily on giving judges continued discretion in considering the best interests of minors at certain points in delinquency proceedings. The bulk of the Juvenile Justice Reform Act of 1998 (Public Act 90-590) took effect Jan. 1. The record-keeping provisions were delayed until Jan. 1, 2000. 
While supporters say the Act brings much-needed balance to a system that has failed to hold young offenders accountable for their actions, critics decry what they see as the continued "adultification" of the juvenile justice system. 
Traditionally, terminology used in juvenile proceedings was different from that used in criminal court. But under the reform provisions, the terminology for most adult and juvenile proceedings will be the same. Instead of being "taken into custody," juveniles will be arrested; an "adjudicatory hearing" becomes a trial; and a "dispositional hearing" is a sentencing hearing. 
Supporters say the changes will make the system easier to understand. Opponents, such as Steve Drizin, supervising attorney with the Children and Family Justice Center at the Northwestern University Legal Clinic, claim the terminology brings a stigma that runs counter to the purpose of juvenile court. "It is an undercutting of the basic foundation of the court, which is that children are different from adults."
Other major changes under the Act include:

*	Limits to the number of station adjustments allowed for juveniles who get in trouble with police but are not officially charged;
*	Increases in the lengths of time juveniles may be held in custody and detention;
*	More extensive fingerprinting of juvenile offenders; and
*	The creation of a statewide database to track juvenile offenders. 

The Act authorizes counties to set up teen courts and community mediation panels, which would include victims, along with offenders and their parents. The Act also authorizes the establishment of county juvenile justice committees to facilitate planning and coordination of services. 

Blended sentencing 

The Act introduces the concept of blended sentencing to Illinois. Patterned after a similar practice in Minnesota, Extended Jurisdiction Juvenile (EJJ) prosecutions will allow prosecutors to seek both a juvenile and adult sentence. The adult sentence would be stayed as long as the juvenile abides by the provisions of the juvenile sentence.
One change under the Act that is expected to face a constitutional challenge is a provision allowing evidence to be presented by proffer at detention hearings. Previously, witnesses were required to be present to testify on evidence. Now, statements and police reports can be read into evidence, without the actual witnesses being present. 
Roberts, while acknowledging that he expected the provision to be challenged, said he thinks the new procedure is constitutional. "We think there can be a reliable determination of probable cause without calling witnesses at that level," he said.
Drizin disagreed. The elimination of witnesses who can be questioned by defense attorneys reduces the chances of weak cases being thrown out at a crucial stage in the process, he said. Because there is no other opportunity to test the state's evidence before trial, the proffers will result in more juveniles being held in detention before trial, Drizin said.
"It means that especially weak cases have a greater chance of remaining in the system," he said. 
Drizin said the best features of the new provisions are those that focus on giving youths the skills and opportunities to change their lives, the competency development aspect of restorative justice. But he criticized the bill for being big on the concepts and rhetoric of balanced and restorative justice, while failing to provide the resources needed to do the job.
"The shortfall of Illinois' juvenile justice reform, and among other states that are playing with this model, is that they don't place enough resources in the system," Drizin said.
Funding for the Act was a contentious issue, with the legislature eventually appropriating some $33 million to support various programs and initiatives outlined in the new provisions.
Implementation of balanced and restorative justice in Illinois will require extensive community activism and local initiative. Several initiatives that are part of balanced and restorative justice are unfunded and will have to be implemented at the county level. 

Community mediation 

One such initiative is the community mediation program. The Act authorizes state's attorneys to establish community mediation panels, made up of a cross-section of members of the community, which would work with victims and juvenile offenders and their families to arrive at a plan for restitution and rehabilitation. The cases referred to the mediation panels will involve juveniles receiving station adjustments, probation adjustments, or referred by the state's attorney as a diversion from prosecution. 
Among the sanctions that could be imposed on the minor would be referral to a community-based nonresidential program, counseling, and other community services.
Roberts acknowledged that for restorative justice to be effective in Illinois, more needs to be done to intervene before young people end up in juvenile court. A continuum of care and intervention programs must correspond with a continuum of gradually increasing sanctions. 
Balanced and restorative justice also will need to be embraced by the community to make a difference. The Juvenile Justice Reform Act provides a foundation to build upon, but for now specific programs may have to be supported through grants or volunteer efforts, Roberts said.
"I'm an optimistic person," Roberts said. "I think it will catch on. It's going to take time."  
Daniel Dighton is a public information officer with the Authority.



© ILLINOIS Criminal Justice Information Authority and the University of Illinois at Chicago.