Mediation as a Basic Element of Crime Control: Theoretical and Empirical Comments

Transcription

1 Mediation as a Basic Element of Crime Control: Theoretical and Empirical Comments Dieter Rössner* ABSTRACT German penal law has begun to explore constructive social alternatives in the field of penal sanctions, including Victim-Offender-Reconciliation (VOR). Ethically, this trend rests on the principle of individual responsibility, in substantive criminal law, and on the preference for the offender's taking responsibility for his criminal sanction, in correctional law. These alternative methods of dispute resolution also assign greater significance to the victim's interests and make room for rational conflict management. On the basis of these principles and the practical experience of pilot projects, a working group of German, Swiss, and Austrian criminal law academics (to which the author belongs), published the so-called Alternative Draft Compensation (AE-WGM) in 1992, introducing compensation into the system of legal consequences as a third way. Meanwhile, the German legislature implemented the idea underlying the AE-WGM by creating section 46(a) of the German Penal Code. 1 This section contains a provision by which the judge may, in his discretion, refrain from punishment in cases in which the maximum penalty is one year in prison and VOR has taken place. The prosecutor may withdraw the charge under the same conditions. VOR has thereby become an integral part of the system of legal sanctions, making it necessary to explore how conflict resolution may be incorporated into state control of crime, generally speaking. * Professor of Law, Universität Marburg A StGB [German Penal Code].

2 212 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 The newly organized German Research Group on Restorative Justice (GRJ) accumulates data about the quantity, organization, and procedures used in potential VOR cases. The data show that VOR is carried out mainly by independent bodies of the youth welfare service and only partly with judicial assistance. There are nearly four hundred such service institutions in Germany. The acceptance rate among victims and offenders is very high (more than 80%). The majority of cases handled through VOR are bodily injury offenses, theft, criminal damage and, to some extent, robbery. VOR is mostly carried out by social workers who settle conflicts through personal contact between victim and offender. On the whole, mediation works successfully in peacemaking after a criminal offense. I. THE DILEMMA OF CRIMINAL THEORY AND RESTORATIVE JUSTICE Reacting to individual harm or dangerous antisocial behavior is a founding element of every community. Wrongful harm challenges every human community because the rules protecting social life are not established by instinct but by continuous rule enforcement. The Judeo- Christian Genesis story, like all other mythologies, begins the history of mankind with a reaction to an act of rule breaking (i.e., banishment from paradise). Until now, we have been faced with the dilemma that we do not know how to react to wrongful harm. From an ethical perspective, a reaction to an offense is an inevitable evil, but not necessarily a new harm and or pain to the wrongdoer. 2 Punishment as retribution has been the traditional response in common sense as well as in criminal theory. It is supposed to be the natural and logical consequence of wrongdoing. Criminal law must violate the offender in the same way he violated his victim and is not meant to heal wounds (as, e.g., in civil law). 3 Is not justice better served 2. Peter Noll, Die ethische Begründung der Strafe 17 (1962). 3. Karl Binding, Die Normen und ihre Übertretung 284 (3d ed. 1916).

3 1999] MEDIATION AND CRIME CONTROL 213 by healing harms, putting right the wrongs, and finding constructive ways of conflict resolution? 4 This everyday dilemma, which we attempt to solve in more or less a retributive or restorative sense corresponding to the structure of our personality, also appears in all human sciences, especially in philosophy and psychology. We find fundamentally different views if we compare the positions of the Old and New Testaments in the Bible (e.g., An eye for eye versus the ethic of the Sermon on the Mount), the criminal theory of Kant and Beccaria, or the attitudes of authoritarian and autonomous morality. 5 From this perspective, it is strange that restorative justice and the constructive alternative of mediation appear as new calls to criminal policy. The natural and moral quality of peacemaking after wrongdoing, however, was suppressed by the artificial limits of the formal law system. From the peacemaking perspective of criminology to the social dimension of a criminal conflict, to the obligations and liabilities of the offender and the victim's pains and harms, criminal theory is confronted with an old question of new urgency. With regard to the significance of this question for social life, we cannot escape the dilemma by reference to formal arguments about the differences between fields of law (i.e., criminal law versus civil law). 6 Criminal theory tries to immunize itself against social reality by ignoring the often complex conflict between victim and offender. So criminal law disregards the fact that a report to the criminal justice system often means the victim's cry for help with conflict resolution, not merely a desire for retaliation. Especially in violent family conflicts, we realize that the traditional criminal law response often 4. See Special Issue, The Phenomena of Restorative Justice, 1 Contemp. Just. Rev. 7 (Dennis Sullivan ed., 1998) [hereinafter Phenomena of Restorative Justice]. 5. Lawrence Kohlberg, The Philosophy of Moral Development (1981). 6. This is one of the most frequently raised objections against victim-offender reconciliation in the German debate on restorative criminal policy, see Hans Joachim Hirsch, Wiedergutmachung des Schadens im Rahmen des materiellen Strafrechts, 102 ZStW 534 (1990).

4 214 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 creates rather than resolves conflicts. Protection for the victims means not only the immediate isolation of violence and the assessment that this behavior is not tolerated, but also an attempt to resolve the conflict within the context of a particular social situation. Especially in cases of close victim-offender relationships, crime control does not exclude peacemaking by social conflict resolution, as criminal theory tries to make us believe. We need both ways of social control. 7 Nevertheless, we must face this bias of criminal theory and tackle the complex and subtle task of combining the isolation of especially violent wrongdoing and socially constructive conflict resolution. I think this is the only way left to handle the dilemma of crime control in a human rights based society. This rough outline of the scope of crime control finds strong support in the basic principles of social control of which crime control is but one aspect. From this perspective, we recognize peacemaking achieved through acts of reparation and reconciliation as a deeply grounded (probably biological) program of behavior. Ethological studies on the behavior of primates show the importance of acts of reconciliation after violent attacks for maintenance of the social life. Reconciliation as part of social life is older than the process of civilization. 8 Unfortunately, this positive genetic program of behavior has remained relatively unexplored with regard to its negative side: aggressive behavior. There is no doubt that restorative justice was so successful in early societies because people realized the benefits of non-violent conflict resolution. 9 Reconciliation guaranteed more social safety, stability, and progress than continuing reactions in a cycle of violence. 7. John Braithwaite & Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1990). 8. Frans de Waal, Peacemaking Among Primates (1989). 9. Anna Eva Brauneck, Allgemeine Kriminologie 97 (1974). For the reasons for the revival of this principle, see James W. Zion, The Use of Custom and Legal Tradition in the Modern Justice Setting, in Phenomena of Restorative Justice, supra note 4, at 133.

5 1999] MEDIATION AND CRIME CONTROL 215 On closer examination of this early form of social control, we recognize important principles of crime control: For instance, if we look at the institution of palaver, 10 the vocal public dispute between victim and offender, we find a clear and simple representation of a modern criminal justice system, with elements of restorative justice. The offender and the victim are placed in a hut without walls in the middle of the community, in order to control the dispute as well as to protect the victim against a second victimization at the hands of the offender (in the modern setting: crime control through the criminal justice system). In the end, however, it is the act of disputing itself that resolves the conflict (VOR in the context and under control of the criminal justice system). The modus of restorative justice remained a basic element of crime control until the beginning of the Middle Ages, when peacemaking was seen only as a symbolic demonstration of state power by extraordinary capital punishment. A weak state revealed its powerlessness through brutal crime control. There was no place for social conflict resolution. 11 Symbolic use of retributive sanctions by the authority of the state appears whenever that authority is threatened. The well-established authority of the state in today's western industrial countries allows more freedom for restorative arrangements in the criminal justice system. This is one more reason for the current emergence of the restorative movement in international criminal policy. II. THE FUNCTION OF RESTORATIVE JUSTICE IN CRIME CONTROL We recognize crime control as one part of the general system of social control. This recognition raises questions about the function of criminal law. We must point out 10. de Waal, supra note 8, at Dieter Rössner, Wiedergutmachen statt Übelvergelten, in Täter-Opfer- Ausgleich: Vom zwischenmenschlichen Weg zur Wiederstellung des Rechtsfriedens 8 (Erich Marks & Dieter Rössner eds., 1989).

6 216 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 what the specific tasks of criminal law are in relation to the complete system of social control. We must realize that the two methods of control are dependent on each other. Traditional criminal theory does not take this mutual dependence into account, and therefore determines the function of criminal law without respect to the reality of social control. This unrealistic, isolated, and merely dogmatic approach exaggerates the traditional philosophy of punishment, especially the possibilities of rehabilitation through punishment. Some facts about the process of socialization can reveal that rehabilitation is not a specific task of the criminal law. Despite all the uncertain and complex determinants in the process of socialization, the following basic principle is proved. Norm education depends on the period of time and the social relationship: The younger a person is, and the closer the personal bonds to the educator, the more effective norm learning becomes. So we must realize that the educational influence continuously diminishes beginning with family, friends, neighborhood, sport clubs, church, community, mass media society, and eventually to the criminal law. The criminal law cannot, therefore, be seen as an effective instrument of norm education. The specific functions of the criminal law can only become clear in relation to the general system of social control. They show the following elements, which are necessary in a modern system of crime control and have no other place in social control: Isolation of the wrongful act by a reaction of a powerful criminal justice system; 2. Assessment of responsibility for an offense; 12. For further elaboration, see Dieter Rössner, Was kann das Strafrecht im Rahmen der Sozialkontrolle und der Kriminalprävention leisten?, in Kriminalprävention und Strafjustiz 17 (Jörg-Martin Jehle ed., 1996).

7 1999] MEDIATION AND CRIME CONTROL Justice and protection for the victim; 4. Reinforcement of the broken law and the lost trust; 5. Reasonable, balanced, and formalized procedure; 6. Constructive conflict resolution through integrative sanctions like victim-offender reconciliation. This is not the place to explain thoroughly these elemental principles of a new criminal law. I will limit myself to demonstrating how, logically, peacemaking by mediation can be incorporated into the state system of crime control. At first we learn that the starting point and main focus of crime control are the offense and its treatment. This offense-oriented perspective is evidently found in the criminal sentence: It convicts the defendant of a larceny, robbery, or physical injury not as a burglar, robber, or thug. The verdict respects the person and his dignity: It does not stigmatize the offender but only contradicts, marks, and isolates the offense. There is an important difference between the person and his acts. This subtle dogmatic distinction in criminal law opens the way for a selfresponsible peacemaking by the offender: By compensation, the offender accepts that he has done wrong and shows that he generally respects the rights of other persons and the permanent norm. With the voluntary compensation to the victim, the offender manifests to himself the difference between his wrongful act and his person. This phenomenon of association was clearly formulated by Goffman: an individual splits himself into two parts, the part that is guilty of an offense and the part that disassociates itself from the delict and affirms a belief

8 218 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 in the offended rule. 13 Initially, it may appear to be difficult to put the new theory of reintegrative sanctioning into practice. 14 The wrongdoing must be isolated and objected to and clearly labeled (without stigmatizing the person); at the same time, the offender must be given the opportunity for voluntary association, rule-affirmation, and integration into the community. These principles can only be realized in a justice model of restorative justice that is incorporated into the state criminal justice system. This is the appropriate way to handle the complex problem of reintegrative sanctioning, especially the necessary protection of the victim. The victim should not suffer a second time in the process of conflict resolution. The incorporation into the state justice system guarantees that the victim's and the offender's rights are taken into account in the process of mediation. We must recognize that criminalization implies not only oppressive and severe consequences for the offender, but also protects freedom and belief in social rules for the sake of the victim and society. Crime control by the state is an instrument of balancing power and freedom among weak and strong members of the community. 15 To put this theoretical consideration in more concrete terms, the physically strong individual is protected by the legal ban on all violent acts from the selfish pursuit of his interests. The weaker individual may trust that his justified interests are not overwhelmed by physical strength or fraud. Criminal acts must be controlled by the criminal justice system. Restorative justice accepts this system, which guarantees the elimination of violence in human social life and is a keystone of civilization in modern society. So the criminal justice system presents the setting for fair and victim-protective mediation. 13. Erving Goffman, Relations in Public: Microstudies of the Public Order 113 (1971). 14. John Braithwaite, Crime, Shame, and Reintegration (1989). 15. Dieter Rössner, Strafrechtsfolgen ohne Übelzufügung, 1992 NStZ 409.

9 1999] MEDIATION AND CRIME CONTROL 219 There are additional reasons to implement victimoffender reconciliation into the criminal justice system with respect to criminal violations. In criminal theory, responsibility and autonomy form the basis of every justification of criminal law. Penal responsibility is based on an autonomous decision and act of the offender against the law. Consequently, autonomous acceptance of responsibility and compensation should represent material principles that apply beyond the criminal act. (e.g., even renunciation from an attempt and active repentance). 16 Acceptance of responsibility and victim compensation by the offender fulfill the goal of punishment through norm affirmation and victim rehabilitation, so that repressive measures become superfluous in the process of sanctioning. Peacemaking by mediation does not abolish state control of crime or establish an informal shadow justice. It is just an alternative to retributive punishment within the penal system, which is based on the principles of human rights. The more penal control contains autonomous elements, and the less it depends on repression, the more it repairs institutional authority in the final instance. Today's criminal law is no more committed to a law of criminal punishment than it was in the past. Non-intervention, informal sanctions, and measures of prevention all play important roles in the system. The characteristic of the criminal law system is state control, not punishment. Criminal law brings within the scope of its control all behavior that is socially damaging. The aim is to restore law and order after the crime has been committed. There are four ways to do so: Tolerance with the possibility of no reaction to the socially damaging behavior to the extent that law and order can be restored without some form of conviction or sentencing. 16. Dieter Rössner, Autonomie und Zwang im System der Strafrechtsfolgen, in Festschrift für Jürgen Baumann 269 (Gunther Arzt ed., 1992)

10 220 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 Peaceful victim-orientated settlement of conflicts, victimorientated by means of compensation, if deliberate assumption of responsibility by the offender sufficiently fulfills the victim's and society's interests. Atonement for guilt and preventive influence by means of penalties, if tolerance or victim-offender settlement is not sufficient to restore law and order after the crime has been committed. By means of preventive social defense using measures for crime prevention and offender reformation. PLEASE INSERT TABLE HERE In conclusion, peacemaking by mediation is a central element of state-incorporated crime control. This important third way appropriately placed between nonintervention and punishment harmonizes crime control and the interests of the victim. By assuming a more active and positive role in reacting to crime, the victim can avoid at least to some extent becoming the object of further harm or being victimized again during (and by) the process. Likewise, the principle of restitution is one to which offenders, victims, and society can give their approval, as all parties involved benefit. 17 III. RESTORATIVE JUSTICE IN GERMANY: A JUSTICE MODEL OF VICTIM-OFFENDER-RECONCILIATION For the past ten years, criminal policy in Germany has attempted to integrate VOR into criminal procedure and 17. Hans Joachim Schneider, Restitution Instead of Punishment, in Victims and Criminal Justice 364 (Günther Kaiser et al. eds., 1991).

11 1999] MEDIATION AND CRIME CONTROL 221 the system of criminal sanctions. As a result, it now is possible to analyze a justice-based model of restitution and its results. The alternative draft (AE-WGM), prepared by a team of German, Swiss, and Austrian criminal law scholars, influenced the development of VOR. The AE- WGM is a particularly complete and systematic conception of state-incorporated restorative justice and represents the first attempt to articulate the principles underlying criminal offenses in a socially constructive way. The AE- WGM's proposed rules can be viewed both as the focal point of the current discussion and as the basis of the reform. Its essential features can be summarized as follows: 18 The AE-WGM encompasses both substantive and procedural criminal law. In the law of juvenile delinquency, the AE-WGM creates a third option, alongside penalties and treatment measures, for assessing the legal consequences of the criminal act. Insofar as compensation extends to the restoration of law and order, this third way replaces the penalty itself by making it possible to refrain from punishment. Where prison terms of over one year must be imposed, the AE- WGM mitigates the punishment. The personal offender-victim settlement is the centerpiece of the reform approach. However, it is also important that AE-WGM should not leave the offender in a worse position than would traditional criminal law. This concern is particularly significant when the victim is not willing to consider settlement, in attempt cases, and when the offender commits a crime against public, rather than individual, interests. In addition to the personal benefits 18. See Heinz Schöch & Britta Bannenberg, Victim-Offender-Reconciliation in Germany, in Victims and Criminal Justice, supra note 17, at 458.

12 222 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 that accrue to the offender, compensation in the form of community work or monetary payments to charitable organizations also benefits society. Any voluntary attempts the offender makes to compensate the victim prior to the commencement of trial [Hauptverhandlung] should result in an obligatory mitigation of punishment or punishment substitution. However, for compensation attempts made after that point, only a discretionary mitigation of punishment is possible. VOR also encourages private initiatives by informing the offender and the injured party at an early stage about the possibilities of compensation. Likewise, the suspension of court proceedings as well as the incorporation of arbitration boards and other advisory bodies also encourage private initiative. A judicial compensation procedure, headed by a judge or organized around a judicial proposal for settlement, can take place by application or after the indictment and commencement of legal proceedings that conclude in VOR. The court will confirm a mandatory mitigation of penalties if VOR agreements are immediately effected (or effected within a short period of time). The court will also mitigate penalties if the procedure is dismissed or if the compensation amount is considerable. The AE-WGM's definition of compensation reflects its purpose as a criminal law sanction: It aims at voluntary reconciliation, during the course of which non-material restitution in the form of arbitration, talks, apologies, or gifts is also possible. In addition, full restitution for damages is only one possible remedy. Symbolic restitution in the form of community service work may also be possible in cases where the victim suffers no financial damages (i.e., attempt), or when the victim is unwilling to accept any

13 1999] MEDIATION AND CRIME CONTROL 223 reconciliation, or for offenses against the general public. Symbolic restitution may include payments to insurance companies. Even though the AE-WGM focuses on minor offenses and offenses against the person, the Draft is intended to apply to all offenses defined in the German Penal Code. The leading principles are voluntary compliance with criminal law rules and successful restitution of the victim's interests. As a matter of principle, the victim should not have to endure financial hardship during the proceedings. Therefore, all compensation payments should be made before trial. 19 Compensation enables the offender to avoid punishment for offenses carrying prison terms not exceeding one year. 20 Indeed, for these types of offenses, punishment is imposed only in exceptional circumstances and only when it is essential to produce an effect on either the offender or the public. Alternative legal remedies, like compensation, that prioritize the offender's voluntary assumption of responsibility over punishment, also require procedural modifications. For instance, mechanisms must be developed to assist both victims and offenders who seek help. In this way, cooperative elements are incorporated into criminal proceedings. In addition, the AE-WGM balances the rights and interests of defendants and victims by informing both parties of their right to participate in the compensation procedure. 21 A number of procedures are commonly utilized in restitution actions. The parties may interrupt the judicial proceedings to reconcile their differences. 22 They may also decide to use extra-judicial procedures like arbitration, 23 or to submit to judicial restitution proceedings before a panel AE-WGM [Alternative Draft Compensation] AE-WGM , 14, 15 AE-WGM III, 16 II AE-WGM II, 16 II AE-WGM.

14 224 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 of professional and commissioned judges. 24 The proceedings may terminate in a dismissal, 25 a verdict of guilty with no punishment, or a reduction of the punishment in light of the restitution. On January 12, 1994, the German legislature partially adopted this general proposal by introducing section 46(a) into the German Penal Code, as follows: If the offender: 1. has compensated or seriously attempted to compensate fully or to a large extent the consequences of the crime he has committed by making a genuine effort for reconciliation (VOR) or 2. has fully or to a large extent repaired the damages in cases requiring considerable personal effort or some form of sacrifice 3. the court may mitigate the sentence pursuant to section 49 I or refrain from punishment in cases where imprisonment up to one year or a fine of up to three hundred daily rates is incurred. The principal defects of the statute are its failure to delineate the court's discretionary power and to establish a procedural framework. 26 The AE-WGM will continue to point the way toward the future criminal policy in the field of restorative justice , 18 AE-WGM b StGB [German criminal procedure statute]. 26. Dieter Rössner, Verfahrenserledigung durch Täter-Opfer-Ausgleich im Allgemeinen Strafrecht, in 19 Strafverteidigertag 1995 (Schriftenreihe der Strafverteidigervereinigungen) 163 (Strafverteidigervereinigungen eds., 1995).

15 1999] MEDIATION AND CRIME CONTROL 225 IV. RESTORATIVE JUSTICE AT WORK: AN EVALUATION OF THE GERMAN SITUATION Three years ago, the German Research Group on Restorative Justice 27 initiated a systematic research project to evaluate restorative justice activities in Germany since The project registered all institutions that engaged in victim-offender reconciliation in any way and investigated their administrative structure, as well as the qualifications of the mediators. Moreover, data from case studies were analyzed. From an institutional perspective, the data indicated that restorative justice boomed in the nineties. The number of local institutions that practiced some form of restorative justice doubled between 1990 and In 1995, for instance, three hundred sixty-eight agencies cooperated with the criminal justice system in the field of VOR. The majority of institutions engaged in cooperative efforts in the course of ordinary social work and processed only a small number of cases through court assistance and other social assistance in the criminal justice system. By contrast, each of the twenty-five organizations specializing in VOR processed more than one hundred cases a year. Usually these organizations have well-qualified social workers who are trained in mediation. Detailed analysis shows that these institutions work with clear and explicit conceptions of restorative justice, engage successfully in difficult and complex cases, and promote restorative justice in public opinion. Thus, these data indicate that the expansion of restorative justice as a common instrument of crime control requires specialized institutions with qualified staff members. In 1995, over nine thousand cases, two-thirds of which 27. Central Office at the Institute of Criminology of the University of Tübingen, Corrensstraße 34, Tübingen, Germany ( roessner@mailer.uni-marburg.de). Several papers on the results are available. The final report was published in September, See Täter-Opfer-Augleich in Deutschland: Bestandsaufnahme und Perspektiven (Bundesminister der Justiz ed., 1998).

16 226 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 came from the juvenile justice system, were registered. There are, however, many significant local differences in the types and grades of organizations that practice restorative justice. Only 10% of the cases reach mediation via a court decision; instead, the prosecutor generally decides which cases are appropriate to pass on to a mediator for VOR. After the successful completion of a compensation action, the prosecutor usually dismisses the charges against the offender. The compensation cases cover a wide spectrum of crimes and include the entire range of classical offenses. Physical injury cases comprise 63% of offenses; theft, 10%; damage to property, 15%; and insult/defamation, 10%. Nearly all the victims were personally injured. The distribution of the offenses shows that great importance is attached to personal relationships and to social-conflict resolution in restorative justice. Once again we find high levels of acceptance of VOR among both offenders and victims. For instance, four out of five victims were prepared to attempt VOR, while over 90% of offenders voluntarily participated in VOR. The sex and age distributions of the offenders who took part in VOR do not appear to differ from those of other suspects in police criminal statistics (75% of offenders were men). The percentage of foreigners who participated in VOR was not markedly higher than that of the general population. A significant number (40%) of participants were previously convicted offenders. These data clearly indicate that compensation is a sensible and reasonable way of handling career offenders. Offenders and victims cite a number of factors, including an interest in compensation, as reasons for taking part in settlement proceedings within the criminal law. In fact, the motivations listed by offenders and victims are markedly similar to the functions attributed to compensation in policy debates about criminal law. The offenders indicate that they take part in settlement proceedings in order to improve their position within the criminal proceedings. However, offenders also

17 1999] MEDIATION AND CRIME CONTROL 227 identify an interest in efficient resolution of the conflict and a willingness to communicate with the victim as important reasons for participating in settlement proceedings. For victims, on the other hand, the primary motivation for engaging in settlement proceedings is to obtain satisfaction from the offender. The desire for satisfaction ranges from a simple wish for individual peace to a more comprehensive desire for peaceful resolution of the conflict. The interest in conflict resolution is particularly pronounced in physical injury and insult/defamation cases. In almost half of the cases, the victims were willing to cooperate if they could obtain personal redress through compensation. A number of victims believed that their own behavior rendered them jointly responsible for the crime. In long running cases, clearing up the situation was the most important motivation for engaging in settlement proceedings. In 60% of cases, the mediation process took place in the presence of victim, offender, and mediator. In the remaining cases, the victim and offender had direct contact (20%), or the mediator met with the parties separately. The mediation efforts were very successful. Eightyfive percent of the cases resulted in complete peacemaking with compensation and reconciliation, along with reparation of damages. In addition to mediation and damages, symbolic reconciliation in the form of apologies, gifts, and labor (including both joint activities and work done on behalf of the victim) also occurred frequently. The victims and the judiciary appear to accept compensation as a method for restoring order after everyday crime. Moreover, the majority of victims and prosecutors appear to be satisfied with conflict resolution that aims at achieving peace between the parties. 28 In conclusion, restorative justice is here to stay. The need for compensation in the general criminal law is unmistakable. Making good after something goes wrong is 28. See Klaus Sessar, Wiedergutmachen oder strafen: Einstellungen in der Bevölkerung und der Justiz (1992).

18 228 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 a common practice in human communities. Social control even in the criminal justice system is impossible without social peacemaking. For these reasons, we cannot escape the challenge of harmonizing different aspects of crime control in a single governmental act. Perhaps the greatest strength of restorative justice is that it focuses on the problems and interests of the individuals in the community, not on an abstract order, by recognizing the harm suffered by the victim and fostering the principle of personal responsibility. APPENDIX Alternative Draft Compensation (AE-WGM) (Excerpts) 1. Reconciliation (1) Reconciliation is intended to make good the damages by means of voluntary service on the part of the offender. It serves to restore the legal equilibrium. Reconciliation shall be carried out primarily for the benefit of the victim; in the event that this is impossible, or unlikely, or insufficient in itself, reconciliation for the public (symbolic reconciliation) is to be taken into consideration. (2) Voluntary service includes the offender who fulfills the obligation he assumed during judicial or extra-judicial compensation proceedings. 2. Reconciliation services (1) The following reconciliation services are available: 1. Compensation for damages to the victim; 2. Compensation for damages to a third party, especially insurance companies, upon whom the claim has devolved; 3. Further material services, such as payments to charity; 4. Gifts to the victim or immaterial services, such as an apology or a reconciliation meeting; 5. Work performed, especially charitable services. A

19 1999] MEDIATION AND CRIME CONTROL 229 combination of these different services may be performed. (2) Neither the victim nor the offender shall be burdened in an unfair or intolerable way by the reconciliation services. 3. Partial fulfillment of compensation for damages (1) If the offender is incapable of fully compensating the victim for damages due to his personal or financial situation in special cases (namely in cases of negligible guilt), the replacement of a part of the damages caused may be accepted as reconciliation. (2) Thus, as a rule, further services are required, pursuant to 2, 1, no. 4 or Reconciliation instead of punishment (1) If the offender has compensated the victim for the crime committed ( 1, 3) the court refrains from punishment unless the punishment is imperative to influence the offender or the public. (2) As a rule, punishment is imperative according to (1) only in cases where the offender would have incurred a prison sentence of more than one year without reconciliation. 5. Mitigation of sentence (1) If punishment is imperative despite reconciliation ( 4) then the punishment is to be mitigated pursuant to 49, 1 of the German Penal Code. (2) The same applies in cases where the offender has compensated the victim, not fully but to a large extent, for the legal consequences of the crime by performing reconciliation services. According to the extent of compensation procured, the court may, in addition, mitigate the punishment according to its discretion ( 49, 2 of the German Penal Code). 13. Reconciliation during preliminary proceedings (1) If the investigation provides grounds for proffering a public charge, the prosecution defers for up to three

20 230 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 months its decision to charge the accused, provided that reconciliation can be expected within this period of time. The accused is to be informed about this deferral. (2) The prosecution can request a suitable arbitration body in order to attempt reconciliation. The accused and the injured party are to be informed about this; they will be informed that they are not obligated to participate in the proceedings initiated by the arbitration body. (3) The necessary information is to be conveyed to the arbitration body; the files can be sent. At the suggestion of the arbitration body the prosecution can on only one occasion extend the time limit pursuant to paragraph 1, sentence 1 by up to three months. The arbitration body informs the prosecution of the outcome of its efforts. Within the time limit specified in paragraph 1, sentence 1 and paragraph 3, sentence 2, the limitation period is tolled. 14. Reference to reconciliation in the case of preference of the public charge (1) If the accused has compensated the victim for the damages prior to the proffering of the public charge and the prosecution does not withdraw the charge according to 11, 1, the reconciliation services performed, as well as their importance to the legal consequences pursuant to 4-5, are to be quoted in the bill of indictment and in the application for a penal order. (2) In the indictment, the prosecution proposes legal compensation proceedings ( 16-18) if this is expected to lead to reconciliation services with the legal consequences of Reference to compensation proceedings in the notification of the bill of indictment (1) If the prosecution has proposed legal compensation proceedings ( 14, 2) or if the case otherwise appears suitable for compensation, the accused is to be informed, by means of service of the bill of indictment, that he could petition for legal compensation proceedings up to the

21 1999] MEDIATION AND CRIME CONTROL 231 expiration of the testimony period ( 201, 1 of the German Code of Criminal Procedure). (2) In the cases mentioned in paragraph 1, the injured party also is to be made aware of the possibility of legal compensation proceedings. At this time, he is to be informed of the accusation upon which the indictment is based; the indictment can be disclosed to him insofar as it concerns him. Section 11, paragraph 1, sentence 2 shall apply accordingly. 16. Compensation proceedings (1) If the conditions for opening the main trial are met, and if reconciliation services are expected to be followed by the legal consequences of 4 & 5, the court shall defer making a decision on the opening of the main trial by up to three months to allow the accused to perform these services. The accused and the injured party are to be informed about this deferral. An extension of the threemonth limitation may only be granted once. Sentence 1 of this section also applies to concurrent applications of the accused and the injured party unless there is obviously no prospect of reconciliation services pursuant to sentence 1. (2) to support reconciliation, the court may: 1. request a competent arbitration body to try to achieve reconciliation; 13, 2; 3, sentence 1 and 3 shall apply accordingly, or 2. conduct a compensation procedure. Sentence 1 is valid if the accused or the injured party applies for it. The judicial procedures according to sentence 1 Nos. 1 and 2 may be applied sequentially. (3) The limitation period is not tolled during the time limits pursuant to paragraph Judicial compensation hearing (1) The object of the judicial compensation procedure in a hearing is to bring about reconciliation or a reconciliation agreement that needs to be fulfilled by the end of the postponement of the opening of the main trial ( 16, 1). (2) If the proceedings are pending before a court

22 232 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:211 composed of several judges, the compensation hearing is delegated to one of the judges, the commissioned judge, unless it appears appropriate for the case to be heard before the entire court for special reasons, such as the degree of difficulty of the case. (3) The accused and, if possible, the injured party are to be summoned to appear at the main trial; compulsory attendance or administrative fines in the case of absence without leave shall not apply. The prosecution must appear before the court. 18. Procedure of the judicial compensation hearing (1) The injured party, the accused, and the prosecution are to be heard during the judicial compensation hearing. The judge shall support reconciliation by making some appropriate proposals. (2) The judge shall take evidence to clarify the circumstances. He shall have discretion to decide on the nature and extent of the necessary investigation. (3) If reconciliation services cannot be performed immediately, the accused can bind himself to perform these services by the end of the time limit pursuant to 16, 1. If a substantial portion of the services is carried out in due time, an extension of the three-month time limit may be granted. (4) If the accused has bound himself to perform reconciliation services, this obligation must be entered into the record; 168 a, 2 and 4 of the German Code of Criminal Procedure shall apply accordingly. (5) If the judicial compensation hearing leads neither to the performance of reconciliation services nor to a reconciliation agreement, and if transferring the case to an arbitration body ( 16, 2, sentence 1 No. 1) is not expected to lead to reconciliation, the failure of the compensation proceedings can be recorded and the main trial commenced. 19. Refraining from punishment by a decree (1) If the conditions for refraining from punishment pursuant to 4 are met, and if the court does not rule

23 1999] MEDIATION AND CRIME CONTROL 233 according to 11 2, the court finds the accused guilty by a court order and refrains from punishment in cases where it is convinced of the guilt of the accused and where the accused agrees to this procedure. Section 267 of the German Code of Criminal Procedure shall apply accordingly. The decree can be contested by immediate appeal. (2) If a commissioned judge carries out the judicial compensation hearing, then he may render a decision according to paragraph 1 with the consent of the accused and the prosecution.