In 1994, Justice Castañeda and some friends surrounded a man and threatened him. “We were trying to rob the guy for some weed,” Castañeda recalled. “He went to the police and told them we jumped him.”
Police arrested and charged Castañeda with armed robbery. At the time, he was 14 years old and living with his 17-year-old girlfriend. To pay the bills he was selling pot on the street.
After he was convicted, Castañeda was hit with an array of punishments, including time locked in a juvenile detention facility and community service consisting of raking leaves and picking up trash. Additionally, the judge ordered him to pay roughly $1,500 for various court-ordered fines, fees and restitution to his victim.
“It was a lot of money. Honestly, whatever I paid back, it was dope money,” recalled Castañeda, now a doctoral candidate in urban and regional planning at the University of Wisconsin at Madison and the executive director of Common Wealth Development, a nonprofit organization.
That he covered some of those court costs with proceeds from illegal drug sales is emblematic of the dilemmas confronting many young offenders. They can face thousands of dollars in court costs — even tens of thousands, some researchers suggests — including restitution to cover medical bills, property damage or other crime-related expenses incurred by victims.
Courts have long mandated such fees, aiming to hold youth accountable, deter them from future crime and often to cover the justice system’s administrative and other costs. Yet, advocates of juvenile justice reform contend that those conventional methods of demanding accountability from young offenders are counterproductive, neither serving the interests of youth nor their victims. Instead, advocates argue, those costs threaten to deepen some youths’ sense of desperation, worsen already adverse financial and other conditions at home and push youth further into the risky behavior that landed them in court in the first place.
“This process doesn’t work for anyone,” according to the Juvenile Law Center’s recent report, “Reimagining Restitution: New Approaches to Support Youth and Community.” “Because children can’t make restitution payments,” the report’s authors write, “people owed restitution often don’t get paid or face long delays before they are compensated. Meanwhile, restitution is linked to higher recidivism rates for children, family stress, and deeper justice system involvement. In short, no one wins.”
Conducted with researchers from Drexel University’s Juvenile Justice Research and Reform Lab and the Community Advocacy Lab Clinic at Columbia Law School, that study and a recent one by The Sentencing Project argue that it’s counterproductive to bury minors and their families in court costs that many cannot afford. Instead, both studies concluded, more investment and attention should be paid to pre-arrest and pre-trial diversion programs that have a better track record of rehabilitating young offenders.
Therapy and community service vs. financial restitution
After eight years in the U.S. Marine Corps that included deployments to Iraq, Castañeda returned to Madison, grateful for those adults who helped steer him straight. “It was time for them to get a return on their investment,” he said.
He took a job at Briarpatch Youth Services, which Dane County, where Madison is located, contracts to run a restorative justice program for youth who are diverted from the court system. The program lets victims meet with and explain to young offenders the impact of their crimes and how they might mitigate that damage.
Instead of paying court-imposed restitution, through Briarpatch, roughly 300 young offenders per year often can work off their debt by attending therapy, doing community service, even babysitting for younger siblings while their parents are on the job..
“For children in a spot like that, everything has to be educational,” Castañeda said. “We don’t have the luxury of working with children in any space that is not an educational space.”
Levying financial penalties on kids who can’t pay is a broken, unproductive system, he added.
The Juvenile Law Center’s report, released in July, focused specifically on restitution orders. It reviewed existing criminological and sociological studies and analyzed laws nationwide. It found that 31 states and U.S. territories allowed interest to accrue on financial restitution orders. Fourteen states and Washington D.C. allowed restitution to be paid to third parties such as insurance companies that disbursed dollars to cover such costs as property damage repair.
Thirty-five states and territories allowed judges to hold parents responsible for the children’s restitution orders
Non-payment can result in arrest and incarceration, extended time on juvenile probation and civil judgments, including garnishing wages.
While restitution remains prevalent in courts today, Juvenile Law Center attorney Lindsey Smith, the report’s lead author, noted that 14 states have eliminated some or all juvenile fines and fees since 2015: California, Colorado, Indiana, Louisiana, Maryland, New Hampshire, New Mexico, Nevada, New Jersey, Oklahoma, Oregon, Texas, Virginia and Washington.
“We have a separate system to handle harm done by young people for a reason,” said Smith, who also works with leads the national Debt-free Justice Campaign. Teens’ brains have not fully developed, which can impair their judgment. A single arrest often compounds pre-existing problems in their lives and hinders their future job prospects, educational opportunities and access to student and other loans.
Further, Smith said, “There is research showing that the more fines, fees and restitution a minor owes, the higher the likelihood of recidivism.”
Briarpatch is one of the initiatives “that directly link alternative programming to victim compensation,” according to the Juvenile Law Center’s report. Briarpatch pays youth to complete a court-ordered plan that, for example, could involve attending therapy, being paired with mentors through such programs as Big Brothers Big Sisters or working at a food pantry. In some cases, Briarpatch will pay youth to oversee their siblings while their parents are working or help grandparents with chores, said Dean Bossenbroek, coordinator of Briarpatch’s Youth Restitution Program.
“They don’t see the money, it goes straight to the victim,” Bossenbroek added. “I believe that if a youth learns life skills that they can take with them — learning how to do things, show up on time and follow through with the program – they become better citizens. We also do a lot of youth employment stuff. In my opinion, going to a job is a fantastic form of community supervision.”
Briarpatch budgets about $15,000 annually to pay the program’s participants. It’s not enough to pay every youth who goes through the program, but it helps to cover costs for the youngest and those with barriers to employment, Bossenbroek said.
“It’s tough on kids to be buried under this debt, but it’s very hard on parents,” Bossenbroek said. “Now, the whole family is struggling more. Now, there are more bills. Credit scores are getting ruined. Everything from car loans to apartment rentals is affected by this.”
The Sentencing Project’s study spotlighted prior research on the comparatively high arrests rates of Black youth, especially, but also Hispanic, Native American and Asian/Pacific Islander youth who, compared to their white peers, are less likely to have their criminal cases diverted.
Calling diversion the “hidden key to combating racial and ethnic disparities in juvenile justice,” Sentencing Project researchers said successful diversion programs “minimize out-of-pocket costs and make sure that fees and restitution don’t pose an obstacle to completing diversion for low-income youth and families.”
Citing a study that examined what transpired with 1,000 juveniles in Pennsylvania, however, researchers found that fines themselves were a barrier to finishing diversion programs. Youth of color were the most adversely affected by those fines, and they were more likely than white youth not to complete those programs.
Restitution often isn’t a priority for victims of youthful offenders. For example, only 7% of Hawaiian victims surveyed in a study cited by the Juvenile Law Center’s asked for juvenile offenders’ cash. Most victims preferred that offenders show remorse by doing community service or making other kinds of symbolic gestures.
Instead of restitution, reform advocates suggest restorative justice
In 2021, a 13-year-old fleeing the scene of an accident slammed his Dodge Dart — he’d bought it for $80 — into David Cheatham’s car as the 71-year-old family man was pulling out of an auto parts store in Nashville. Cheatham, a few months shy of his 50th wedding anniversary, died. The 13-year-old was charged with vehicular manslaughter.
The criminal court system seemed harried and impersonal when Cheatham’s daughter, Dia Mimms, first met the prosecutor in that case outside the courtroom. “We never really got a chance in court to say anything,” she recalled. “Nobody knew who daddy was to all of us. We never really got to tell our story.”
So, when Tennessee Voices for Victims inquired about whether Cheatham’s family was open to a restorative justice approach in the case, the family, after much discussion, agreed to take part. For 15 months, they met every two to four weeks with former police officer Travis Claybrooks and his team at Raphah Institute, which Claybrooks founded. The family was able to talk about how much their loss hurt, especially around the holidays.
“It felt like counseling but it wasn’t,” Mimms said. “They let us talk and asked all the right questions.”
When the two families eventually met at a hotel, David Cheatham’s relatives displayed photos of him. They asked their questions. They explained the reasons why they loved him. They cried.
When it was her mother’s turn to speak, during the conversation, Mimms was surprised by what she wanted to know: “Tell me about you. What do you like in school?” the widow asked the teen.
“She actually saw him as a person and wanted to learn about him,” Mimms said.
At the end of the process, Cheatham’s kin decided what would approximate justice for them. They wanted that boy to “sacrifice his life to be a good person,” Mimms added. “He would have to change his ways and dedicate his life to replacing the good man he took away.”
So a plan was put in place to make sure the teen stayed in school and worked to identify a career he wanted. “He needed to be taught a better way,” Mimms continued. “For us, that was going to turn something awful into something beautiful.”
As federal diversion dollars go unspent, diversion programs lack capacity
Briarpatch’s and Raphah’s programming is intensive. As do the directors of Briarpatch, Raphah’s directors say their capacity is limited and driven largely by how much funding they receive. Raphah enrolls 30 to 50 youths annually.
The Juvenile Law Center and the Sentencing Project reports both call for more state and federal funding to expand diversion programs. The Sentencing Project highlighted 10 states – Colorado, Hawaii, Indiana, Kansas, Kentucky, Massachusetts, Maryland, South Dakota, Utah and West Virginia – that have substantially reformed their juvenile justice laws to include expanded funding for diversion programs.
The Juvenile Law Center, meanwhile, has identified at least one avenue to help secure that funding. The federal Victims of Crime Act, passed in 1984, provides money for victim compensation. Funded through criminal fines, bail forfeitures and deferred prosecution agreements, among other sources, the money typically goes only to victims of violent crimes. That federal act had a fund balance of $2.9 billion as of February 2022 and paid out $400 million in compensation to victims in 2019, the most recent date that those figures are available.
That “statute should be amended to encompass reimbursement of all victims and types of losses in juvenile cases, including for property crimes and a broader range of economic losses, and to prohibit states from seeking reimbursement in juvenile cases,” the Juvenile Law Center’s researchers wrote. “This amendment would acknowledge the reality that children cannot pay restitution and victims should not be asked to rely on children as a source of compensation.”
For David Cheatham’s family, no amount of money or punishment could right such a huge wrong. And, said Mimms, a former elementary school teacher, “I know from working with young people that treating and responding to them in a punitive way doesn’t make them better. Sometimes they comply out of fear, but it doesn’t help them think better.”
“So, for me,” she continued, “it would have added more pain if, five years from now, I saw his name on the news for committing another crime. It was really, ‘Can I do something to stop the pain for other people?’”
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Award-winning journalist and author Tristram Korten’s work has appeared in GQ, The Atlantic, the Miami Herald and a wide range of other publications. Formerly, he was the editor of the Florida Center for Investigative Reporting.
