60 years of juvenile justice within a human rights context: Looking for the ‘balance’

1. 60 years of juvenile justice within a human rights context: Looking for the ‘balance’ Prof. John Winterdyk (assistance from Crystal Hincks) “60 years from the European Convention on Human Rights: Current trends on human rights” Dec. 17, 2010 Athens, Greece Centre for Criminology and Justice Research

2. Who said it? • "The children now love luxury; they have bad manners, contempt for authority; they show disrespect for elders and love chatter in place of exercise. Children are now tyrants, not the servants of their households. They no longer rise when elders enter the room. Theycontradict their parents, chatter before company, gobble up dainties at the table, cross their legs, and tyrannize their teachers."

3. Why Compare? • Provincial benefits: • insight and understanding of one’s own system(s) • Acquire ideas/insight for improving one’s own system(s) • Universal benefits: • Youth crime is expanding and becoming transnational • To combat 21st Century crime…requires an international perspective to enable cross-national collaboration, capacity building Muncie & Goldson ‘06: developments of any single nation…require understanding within a regional, national, and international context – gangs, smuggling, forced labor, etc.

4. “stretch our imagination about what might be possible” Nelken ‘10 • Beyond ethnocentrism – transcend familiarity as being necessary • Relativism - it is still foreign and ‘undoable’

5. Human Rights and rule of law…“life, liberty, equality and dignity of the individual” • Older adults • Racial, ethnic and religious minorities • Women • Children • People with disabilities • Gays, lesbians, bisexuals and transgendered people • Immigrants and refugees   

6. Juveniles- youth at risk… by any other name!? • Demause ‘78: church and State • ‘child saving’ movement (Platt ‘64) • Art. 24 European Charter of Fundamental Rights - children’s right • ‘09 Effective protection…against economic exploitation and all forms of abuse • Under 12… under child protection legislation • ? Age vs. cognitive/emotive maturity • Yet… most countries like adults – limit liberty as PRIMARY control option

7. Human rights and youth: practical consideration • Age limits: • Some countries use puberty vs. psychological assessments (Melchiorre ‘04) • BUT…lack of agreement re measure of ‘maturity’ • Most countries use age • Variation and inconsistency both within and among countries • ! 30 countries minimum age 7 and 4 countries as old as 18

8. The Beijing Rules • Adopted by the United Nations in 1985 • Provides guidance to countries for the protection of children’s rights • Outlines the need for specialized juvenile justice systems • Function is “to recognize that the young, owing to their early stage of human development, require particular care and assistance with regard to physical, mental and social development, and require legal protection in conditions of peace, freedom, dignity and security”. Centre for Criminology and Justice Research Source: http://www.un.org/documents/ga/res/40/a40r033.htm

9. The Beijing Rules Operate within the framework of both the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the JDL Rules). All three sets of rules are organized in a three stage process: Centre for Criminology and Justice Research

10. International Agreements Related to Juvenile Justice • fully fledged members of society • same rights to due process as adults • should be diverted from the formal justice system • not be labeled as ‘criminals’ • Minimum standards for juveniles in custody • Custodial sentences as last resort • Non-custodial sentences made available

11. Capital and corporal punishment should be abolished… trafficked, smuggled, sexually exploited • right to be released from custody unless there are specific reasons why this should not be granted • rights to measures to promote recovery and reintegration • States are obliged to establish a minimum age of criminal responsibility • States should invest in welfare provisions to prevent juvenile crimes

12. Current HR Issues in Europe“Children in conflict with the law are still children first and do not lose their human rights, including rights to special treatment and protection, to education and to health” –European Network of Ombudspersons for Children • Treatment of migrant children in various countries • Economic, social, cultural rights • In Greece, imprisonment of migrant children • Reduction of the age of criminal responsibility • Separation of terms “responsibility and “criminalisation” • Development of innovative juvenile justice systems • Focus on education, rehabilitation, reintegration

13. Current HR Issues in Europerestoration of the community and victims, protection of the public, and development of the juvenile into a productive citizen • Appeal for “efficient, fair, and specialized JJS” • Concerns regarding juvenile institutions • Abuse, poor conditions, & victimization • Training of legal professionals • Ensure policies are child-specific • Integration of restorative processes • Need for comprehensive and accurate research for comparisons

14. Country Profiles

15. PERCENTAGE OF ALL CRIMES THAT ARE COMMITTED BY JUVENILES

16. Restorative Justice: The impact on juvenile crime • “soft justice” • Process and outcome • Triangular approach: restoration; accountability; and community protection • victims reconciliatory services and family group decision making processes. • Social order over social control • Legislation accommodation (sec. 32 YCJA…extrajudicial measures) • “protect, restore, and improve the public safety...provide the opportunity to bring together affected victims, the community, and juvenile offenders for restorative purposes.”

17. Typologies: Pros-Cons • A country’s youth justice system and HR compliance influenced by complex interaction of factors: • Cultural • Economical • geographic • Historical • Political • Religious, etc.

18. A matter of perspective: selected typologies • Geographic (Junger-Tas & Decker ‘06) • Anglo-Saxon orientation (CDN/UK) • Western continental Europe (Aus/Fr) • Influence of physical proximity, political linkage, legal systems, etc. • Legal models (Friday & Ren ‘06) • Common-law (India/Nigeria) • Civil law (Philippines/Turkey) • Islamic law (SA/Pakistan) • Political linkages (e.g., colonialism), values, history, etc.

19. State based (Reichel ‘08) • Welfare (Australia) • Legalistic (Italy) • Corporatist (Eng & Wales) • Participatory (China) • Reflective of formal a set-up

20. Complex model (Winterdyk ‘02, ‘08)

21. Juvenile Justice Models • CANADA • FRANCE • IRELAND

22. Juvenile Justice Models UNITED STATES GREECE ITALY

23. Alaska to Alberta

24. Caution • Mix will continue! • ? Compliance with human rights • Differentiate not along lines of typologies but themes • Welfare protectionism • Adulteration • Repenalization • Differential justice • Restoration • Tolerance • Decarceration and rights • How restore what not understand • Social science and law…”poor dance partners”

25. Still reflecting • majority of states had incorporated restorative justice language in legislation, policy, mission or program. • in many of these state documents includes: holding juvenile offenders accountable for their offense, involving victims and the community in the justice process, obligating the offender to pay restitution to the victim and/or a victims’ fund, improving the juvenile’s ability to live more productively and responsibly in the community, and securing safer communities. • Harsh sentencing practices • Discriminatory practices • Death penalty • Life w/o parole

26. SUMMARY • Need to establish clearer understanding and evidence-based rationales for themes/models • Having a voice • Peer/youth courts • Inter dependency of democracy • Complexity of JJS within CJS network…often separate • Resource capacity • 3-5% less law/order • Justice and balanced

27. Thank you… • Prof. John Winterdyk • Director: Centre of Criminology and Justice Research • Email: jwinterdyk@mtroyal.ca