Comparative Perspectives

1. Comparative Perspectives Class 26

2. Varieties Of Juvenile Justice • No international consensus on how juveniles justice systems should operate or what they should accomplish • Slight edge toward punitiveness in common law countries, but not a strong trend. • For example: • In the U.K. and many U.S. states, juvenile court resembles adult court • though the penalties are lower in the U.K. • Status offenses exist in some jurisdictions, such as the U.S., but not in others, such as Canada, Denmark, and Germany • Juvenile offenders under age 15 are legally incapable of committing crimes in Scandinavian countries; their conduct is dealt with by welfare agencies.. • In Denmark, there is no separate court or special offenses for juvenile offenders.

3. Nevertheless, despite significant differences in how juvenile justice systems operate, all reflect the view that: • Juveniles should be treated differently than adults • Juvenile status mitigates punishment youth should receive compared to adults • Juvenile offenders should be kept separate from adult offenders.

4. Age Limits • What constitutes “youth” also varies by country • Countries vary widely in both minimum ages of criminal responsibility and jurisdictional ages of youth courts. • For example, Canada and Germany have strict boundaries for dealing with juvenile offenders, the adult criminal justice system, and the welfare system. • Denmark’s and Sweden’s systems are much more fluid. • In addition, when juveniles can be tried and sentenced as adults is a murky issue. • In some countries, the more serious the offense, the more likely a juvenile will be sentenced as an adult • In the U.S., it is estimated that as many as 200,000 juvenile offenders per year are transferred to adult court. • In Canada, fewer than 100 youth are transferred to adult court per year despite the overall use of the youth court being relatively comparable in the two jurisdictions. • Other countries, such as Germany, strictly prohibit the transfer of juveniles to adult court.

5. Age Limits Of Youth Court Jurisdiction Jurisdiction Minimum Age Maximum Age Canada 12 17 Netherlands 12 17 Germany 14 17 England 10 17 Scotland 8 15 United States 10 17 Sweden and Denmark 15 Not Relevant Japan 14 21 New Zealand 14 16 Source: Doob & Tonry, Varieties In Youth Justice

6. Welfare v. Justice • Tension between criminal law and child welfare approaches. • Scotland: Pure welfare approach • Netherlands: Punitive. Welfare approach became obsolete in 1980s because “most interventions had no scientific basis.” • Japan: Protectivist, cultural rejection of Gault • In some Western European countries, there has been a move from child welfare to accountability. • Explanations: • Politicization of juvenile crime • Political opportunism • Moral Panic • Much of the tough-on-crime juvenile justice policies have been implemented after apparent increases in juvenile crime leveled out or decreased • Diffusion from US? Explicit in UK

7. Juvenile Justice In New Zealand • Evolution of the Juvenile Court • Mid-19th Century: Juvenile offenders not recognized as distinct offenders, but were sanctioned in the same way as adult offenders. • Neglected and Criminal Act of 1867: First statute to distinguish between neglected and criminal children • Industrial schools for neglected children • Reformatories for criminal children • Juvenile Offenders Act of 1906: Provided magistrates to hear cases involving children under age 16 separate from adults. • Child Welfare Act of 1925: Formation of child welfare branch and creation of children’s court. • Rooted in humanitarianism, but also concerns about the number of children growing up on the streets without adequate parental control who behaved in an “unacceptable” manner. • Children and Young Person’s Act of 1974: Made it impossible to bring criminal proceedings against a child. A child whose actions warranted court action had to be made subject to a complaint that he or she is “in need of care, protection, and control.” • Legal rights given greater priority

8. New Zealand Youth Court Today • Children, Young Persons and Their Families Act of 1989 • Encourages diversion • Moves toward justice approach without abandoning reformation principles • Not restorative justice per se, but reflects some of its values. • No criminal prosecution for alleged offenders under age 14 (except for murder and manslaughter) • Offenders age 14-17 must be referred to a “family group conference” before criminal charges are formally filed or before sentencing. • The youth court can transfer cases involving serious offenses to the high court.

9. Family Group Conferences • Family group conferences include the offender, his or her family members, the victim, and social workers. • Takes place wherever the family wishes (e.g. at home) • Considers only cases where the offender has admitted guilt or has been found guilty • The outcome must be agreed upon by all members. • If outcome is not agreed upon, the police in police-referred (non-arrest) conferences have to decide whether or not and how to proceed, and the judge in court-referred (arrest) conferences has to make the decision about the appropriate sentence. • Studies indicate victims are least satisfied with the process; offenders and their families are most satisfied with the conferences.

10. The Youth Court • Only a small number of juvenile offenders are subject to court proceedings. • However, in such instances, alleged juvenile offenders are represented by a lawyer. • Transfer to district court can occur in two instances: • At initial appearance in youth court if offender is over age 15 and has committed a very serious offense or where the offense is punishable by imprisonment exceeding three months and the offender requests a jury trial. • At sentencing if the nature and circumstances of the offense, if committed by an adult, would result in a custodial sentence, and the court believes a non-custodial sentence would be inadequate. • Only 7% of these cases are transferred to adult court • Only 5% of these offenders receive a custodial sentence

11. Implications of Juvenile Justice System • Decrease in court referral rates and institutional placements • Decline in number of juvenile offenders convicted and sentenced as adults and a corresponding increase of offenders dealt with within the community. • Preliminary data suggest positive conferencing experiences may result lower recidivism rates

12. Juvenile Justice In Germany • The German Youth Court Law • Roots in late 19th century • Primary justification to protect young from corrupting effects of the adult world • 1908: Frankfurt establishes first court for juvenile offenders • Youth justice policies have remained remarkably steady with few amendments to Youth Court Law • 1943 (Nazi Germany): Introduced possibility of transfer to adult criminal courts for offenders 16 and older, and the age of criminal responsibility was lowered to 12. However, these provisions were repealed at the end of WWII • 1953: Changes in authority to sentence young adults (18-20) as juveniles • 1990: Abolished indeterminate sentences, widened diversion and victim-offender mediation, and introduced important restrictions of pre-trial detention.

13. German Youth Court Today • Today, still centered on educating and reforming juvenile offenders. • Diversion • Decriminalization • Depenalization • However, not completely bound to welfare approach, but a subsystem of general criminal law • Definitions of juvenile crimes same as those of adult crimes • When establishing criminal responsibility, the same basic rules must be followed for juveniles and adults.

14. Major difference between juvenile and adult criminal law is orientations of sentencing • In adult criminal law, the offense is the focus and sentencing reflects the seriousness of the offense • In juvenile criminal law, focus is on the offender and his or her needs. • German laws do not provide for status offenses. • Unlike the U.S., German Youth Court Law does not allow waiver of juvenile rights or transfer of juvenile offenders to adult courts. • Rather, young adults (ages 18-20) can be transferred from adult court to the youth court.

15. Juvenile Crime • Official crime data estimate one-third of males have a criminal record by age 24 • Approximately 15% of males of German descent have been suspected of at least one crime by age 17 • Explanations: • Overcriminalization? • Popitz (German Sociologist): “The basic function of criminal law can be achieved only if people believe that it is uncommon to break the law. If everybody breaks the law, lawbreaking is facilitated.” • 70% of juvenile offenders are one-time offenders • Serious crimes, specifically violent crimes, are rare among younger juveniles. • Trends similar to U.S.

16. Criminal Law & Legal Proceedings • Police discretion minimal; must refer every suspect to public prosecutor’s office • Formal indictment required before a case can be brought before juvenile court. • Prosecutorial discretion also strictly limited to minor and petty offenses where personal guilt is negligible • Pretrial detention • Restricted in juvenile proceedings • For suspected juvenile offenders aged 14-15, risk of escape can only be assumed when juvenile has made a prior attempt to escape or has no residence. • None of the reasons for pretrial detention of adult offenders justifies pretrial detention of juvenile offenders. • Right to appeal • Restricted for juvenile offenders. Must choose between a full retrial or review of their case on legal grounds. • Adults can have their case reviewed twice.

17. Sentencing & Imprisonment • Sentencing of Young Adults (ages 18-20) • Again, although young adults are subject to adult criminal law, they may be adjudicated and sentenced as juveniles if: • A psychological evaluation reveals that the offender shows a typical youthful personality in terms of intellectual and emotional maturity. • If the offense involves typical juvenile misbehavior in type, circumstances, or motive. • Approximately 60% of young adults are sentenced as juveniles. • Imprisonment • Juvenile offender may be imprisoned only if “educational or disciplinary measures are insufficient to educate the juvenile offender or if the seriousness of the crime requires criminal punishment.” • Minimum sentence 6 months; Maximum sentence 5 years

18. Japan • Philosophy – Taisho Law before WW2, modified in 1948 reforms to mirror German post-war model. But in practice, Taisho Law still dominates, based on protectionist norms that are sympathetic to parens patriae. • Jurisdiction • Ages 14-21, presumption of juvenile court • Three categories of offenders • Those breaking criminal laws • Those for whom ‘discipline in the home has failed’ • Neglected children who might be in danger of committing crimes • Below 14, children are referred to Child Guidance Center, referrals to family court only when protective disposition is necessary

19. Procedures and Decisions • Investigation and Hearing • Approximately 1,500 probation officers across the country to hear juvenile cases and make initial recommendations • Strong interventionist undercurrent in PO investigations • Representation • No formal system of representation (despite overt attempts to mimic Gault in late 1960s) • Some tension on this in specific cases • Dispositions • In 1997, 164,327 juveniles had dispositional hearings in family court, only 12.1 percent had formal dispositions. • Only 0.2% referred to the public prosecutor for trial in criminal court • Most are sentenced to juvenile prisons or training schools. The number placed in juvenile prisons under these terms declined from 99 in 1998 to 42 in 1997. • Most of these (9.1%) were probation terms • Few (3 %) received compulsory commitment to training school • Others received “tentative probation”

20. Vive Les Differences? • Comparative Constitutionalism (Alford) • “Evolving standards of decency” is a universal concept, and the Roper court genuflected toward comparativism and originalism (in the common law) by citing UK experiences with the death penalty • But a countermajoritarian analysis would argue that we don’t all share the view of commonalities in immaturity etc., and so we leave a trapdoor for the exceptional cases … this is a failure of the kind of pragmatic comparativism that Christopher Simmons’ lawyers attempted to apply (and failed at, according to O’Connor’s dissent). • Better off with a normative view that derives from the precepts of justice that flow from the Eighth Amendment regarding human dignity. In the end, these are moral, not pragmatic, judgments that call upon (gulp) natural law. • See LWOP developments in UK and elsewhere (van Zyl Smit, 2002)

21. The Sociology of Legal Cultures (Whitman) • Procedural and Distributive Justice • Punishment and collective emotions • Strong and weak states/countries – influence of centralization • Culture of Control (Garland) • Endogeneity of punitiveness into legal culture when crime rates are elevated for long periods of time • Ratchet up problem (ratchet down not impossible but far slower and well-lagged behind temporal changes in crime rates) • Is a Human Rights Approach viable in the U.S. to resolve normative tensions in juvenile justice? • See October 2000 Human Rights Act in UK. • See R v Offen (1 WLR 23) • Potential for influence here? • American Exceptionalism in crime and punishment