Contemporary trends in juvenile justice

Content

A. Scope of Study

B Methodology

Part One: Models of Juvenile Justice Systems
A. Previous Paradigm – Welfare vs. Retribution
1 Welfare Model
2 Retributive Model
3 Perceived Inadequacies of Models
B Paradigm of Restorative Justice
C Contrasting Welfare Model, Retributive Justice and Restorative Justice
1 Sanctioning Offenders
2 Rehabilitating Offenders
3 Enhancing Public Safety

Part Two: Reforms Towards the Retributive Model
A. Japan’s Juvenile Law Reforms
1 Present State of System
2 Recent Reforms
B United States- Due Process Safeguards, Parent Liability Statutes and Curfew Statutes
1 Present State of System
2 Recent Reforms

Part Three: Reforms Towards The Restorative Model
A. United States Teen Courts and Community Based Wilderness Programs
1 Teen Courts
2 Community Based Wilderness Programs
B. Belgium’s Victim-Offender Mediation Program
1 Present State of System
2 Recent Reforms
C New Zealand’s Family Group Conferences
1 Present State of System
2 Recent Reforms

CONCLUSION

BIBLIOGRAPHY

Introduction

Reforms in various juvenile justice systems have traditionally been identified as shifts towards either the welfare/individual treatment model (“Welfare Model”) or retributive justice model (“Retributive Model”). In Welfare Model systems, criticisms that the juvenile offender was treated with too much leniency and was not made accountable for his actions resulted into reforms which focused on retribution and greater punishment. In Retributive Model systems, criticisms that retribution and punishment did not actually reduce recidivism of offenders resulted into reforms which focused on their rehabilitation and treatment.

The tension between these two models arise in the different treatment accorded the primary actor in this system, the juvenile offender. In the Welfare Model, the juvenile offender is considered victim of his circumstances and is given individualized treatment in accordance with his needs. On the other hand, the Retributive Model treats the offender as a menace to society and punishes and incarcerates him.

Both models, however, fail to take into account two other important figures in the system – the victim whom the offender has wronged and the community which is indirectly harmed by the wrongful acts of the offender. The failure of existing models in addressing the needs of the victim and society led to reforms in their key components.

A notable reform in the Retributive Model reflects the growing concern for the victim and the efforts made to enhance victim participation in the system. Rather than simply focusing on punishment of the offender through state processes, the victim is given greater participation and role in the sanctioning process. This can be seen in the reforms made in Japan’s juvenile justice system. Another important reform in the Retributive Model is the building of positive community support and pressure such as the parent responsibility ordinances and juvenile curfew statutes in the United States.

On the other hand, an alternative model, the Restorative Model, emerged in several jurisdictions. The emerging paradigm of restorative justice in the area of juvenile justice provides for greater role and participation of the victim and the community, instead of limiting the focus on the offender. Also, the offender is made accountable not only to the state but to the victim and the immediate community where the offender lives.

Both models (the new Retributive Model which provides for greater participation of the victim and the Restorative Model which provides greater role for the community and the victim) emerged as a recognition of the previous models’ failure to resolve juvenile crime.

The new Retributive Model and the Restorative Model both aim to impress upon the offender the need to make reparation to the victim of the offense.

The Restorative Model goes one step further than the new Retributive Model in that it enhances the support group of the offender in the form of the community and peer groups which are encouraged to initiate activities to enable the offender to become a productive member of society. By holding the offender accountable not only to the state but to the immediate community where he lives and the victim of the offense, the offender realizes the consequences and impact of his actions.

A. Scope of Study

This study proposes that the previous tension between the Welfare Model and the Retributive Model has been replaced by a new tension between the old paradigm (i.e., individualized treatment or retributive model) and a new paradigm, the restorative justice model (“Restorative Model”). The study will examine current legal reforms in selected juvenile justice systems. For each selected jurisdiction, this study will first analyze the general framework of their juvenile justice systems and determine whether the previous systems were characterized as Welfare or Retributive Models. The paper will then analyze the amendments and reforms made to those systems. This study will further determine whether the reforms represent shifts towards the old paradigm or the new paradigm. The jurisdictions in this study were selected because each represent traditional models of juvenile justice wherein reforms were made so as to address perceived failures of the old models.

B Methodology

This study will use the comparative method in its analysis of selected juvenile justice systems. Part One will analyze existing models of juvenile justice, focusing on characteristics and key components of the Welfare Model, the Retributive Model and the Restorative Model. Part Two will analyze the following juvenile justice systems which have implemented reforms representing shifts towards the Retributive Model: first, Japan and its revisions to the Juvenile Law; and second, the United States and due process safeguards, parent liability statutes and curfew statutes. Part Three will analyze reforms in the following juvenile justice systems made within the context of the Restorative Model: first, United States teen courts and community based wilderness programs; second, Belgium’s victim-offender mediation program; and third, New Zealand’s family group conferences.

Part One: Models of Juvenile Justice Systems

A. Previous Paradigm – Welfare vs. Retribution

Naffine classifies juvenile justice systems as either Welfare or Retributive Models.^[1] He argues that efforts at law reform have been directed towards achieving either model. However, no legal system exists in the pure form and influences of the other model exist, although in a less pervasive manner, in any given system purporting to be a purely Welfare or Retributive Justice Model.

1 Welfare Model

The Welfare Model is based on the philosophy of communitarianism and socialism. According to this model, the character, values and needs of individuals are shaped by the society they live in. Thus, society is perceived to be the cause of the criminal behavior of juveniles. The purpose of the juvenile justice system, therefore, is to provide treatment for the juvenile offender rather than to impose punishment. Naffine describes the role of the court in this model as follows:^[2]

The decisions of the welfare-oriented court are therefore less a response to the individual culpability of the defendant as it relates to a particular set of antisocial actions than to the perceived needs of the defendant as they are manifested by criminal wrongdoing. Crime is a sign of personal pathology rather than social irresponsibility. The principal concern therefore is not how far the individual has intentionally infringed the rights of others and the appropriate degree of punishment to match that wrong. Rather, the welfare court is more likely to treat the antisocial action as a cry for help, not as a deliberate and culpable action. It follows that the culpability of the behavior does not set the limits of punishment. Instead the order of the court is deemed to be a cure, not a punishment, and the extent of the cure depends on the particular needs of the defendant.

2 Retributive Model

On the other hand, the Retributive Model is based on the liberal theory. Human beings are viewed as free, rational and self-determining agents whose principal concern is to secure the maximum degree of liberty for themselves. They determine their circumstance rather than their circumstances determining them. The role of the court is to impose punishment commensurate to the offense. Thus,^[3]

The task of the criminal court is to determine whether there has been individual culpability on the part of individual citizens who are deemed to be responsible for their actions. The court must decide whether there has been a deliberately antisocial act on the part of the rational citizen. If so, the task of the court is to find a fitting punishment for this anti-social action, one which will serve notionally to correct the imbalance of freedoms caused by the infringement by one citizen of the rights of another.

The Retributive Model emphasizes the deterrent effects of punishment rather than the need to rehabilitate and reintegrate offenders into society. The court is perceived as a threat to the individual rights of the juvenile offender and hence must be restrained through a system of procedural safeguards which ensure that the juvenile is not placed at a disadvantage vis-à-vis the state. Thus, the Retributive Model recognizes the right of juvenile offenders to defend themselves with a set of rules, legal assumptions and presumptions all designed to ensure procedural due process.

3 Perceived Inadequacies of Models

Both models were perceived inadequate in addressing juvenile crime. By focusing too much on individual treatment and cure of the offender, the Welfare Model failed to sanction criminal behavior and hence, had minimal deterrent effect.

Also, the Welfare Model was perceived to be too lenient on the juvenile offender who was not made to understand and account for the harmful consequences of his acts.

On the other hand, the Retributive Model gave little opportunity for rehabilitation of the offender. By focusing on punishment and isolation of the offender in correctional institutions, the offender was not given the opportunity to repair the harm done to the victim and the community.

Also, both models targeted only the offender, either for individual treatment or for punishment and failed to include other parties affected by the criminal act- the victim and the community.

B Paradigm of Restorative Justice

The Restorative Model recognizes three primary actors in the juvenile justice system: the offender, the victim and the community.^[4] In this approach, the following goals are addressed:

First, accountability through sanctioning based on measures which restore victims and clearly denounce and provide meaningful consequences for offensive behavior. The goal of accountability requires that offenders “make amends” for the harm resulting from their crimes by repaying or restoring losses to victims and the community.

Second, competency development through offender rehabilitation and reintegration. Juvenile offenders who enter the system should exit the system more capable of being productive and responsible in the community.

Third, community protection through enhanced community safety and security at the lowest possible cost.

Restorative Model is based on the assumption that the essential functions of the juvenile justice system (“juvenile system”) – rehabilitation, community protection, sanctioning and victim restoration- can be effectively accomplished only through the participation of victims, offenders and the community. It is based on the value statement that justice is best served when victims, offenders, and the community receive balanced attention and gain tangible benefits from their interactions with the juvenile system.^[5]

C Contrasting Welfare Model, Retributive Justice and Restorative Justice

The existing models of juvenile system may be differentiated in terms of their approach to three major goals: first, sanctioning offenders through denouncing harmful behavior and providing consequences for wrongful act^[6] ; second, rehabilitating offenders; and third, community protection.

1 Sanctioning Offenders

The Retributive Model holds offenders accountable to the state and sanctions offenders through incarceration and other forms of deprivation of liberty. On the other hand, the Restorative Model holds offenders accountable to the victim and the community. Thus, the Restorative Model requires offenders to “make amends” by repairing the damage done to the victim and to the community. The active participation of victims and members of the community are encouraged by the Restorative Model through mediation, victim awareness panels, mentoring, and other projects.

2 Rehabilitating Offenders

The Welfare Model views the juvenile offender as incompetent, disturbed and incapable of positive, productive behavior until the offender’s personal and interpersonal problems are treated through therapeutic and remedial interventions.

On the other hand, the Restorative Model focuses on competency development and assumes that most offenders with the right supervision and support can begin immediate involvement in productive activity.^[7]

3 Enhancing Public Safety

Both the Welfare and the Retributive Models do not clearly address public safety. The Retributive Model’s use of imprisonment to isolate the juvenile offender and the Welfare Model’s use of individual casework treatment do not adequately result to crime control nor protection of the public.

On the other hand, the Restorative Model attempts to ensure public safety through structuring the juvenile offender’s time in the community and requiring the offender to do productive community work. Thus,^[8]

In a Restorative Model, a central value guiding the commitment to the community as a “client” is that no youth will be released from supervision without juvenile justice professionals doing everything within their power to minimize risks that the offender may pose to citizen safety. For some offenders, ensuring public safety will almost inevitably mean reliance on residential confinement for some period of time. For most, however, it will mean that intensive efforts should be made to develop alternative systems to ensure that offenders can be managed safely in their communities. Since youths on community supervision (probation and parole) represent the most immediate risk to public safety presented by known offenders, a balanced approach to community protection would require an increase in resources designated to ensuring strengthened supervision for offenders on probation and those exiting residential programs.

The Restorative Model also ensures public safety through building the capacity of communities and neighborhood institutions to supervise juvenile offenders and prevent delinquency. Thus, various community organizations such as students groups and parent associations are encouraged to undertake activities which will promote greater involvement of the youth, including juvenile offenders.

It should be noted, though, that a new form of Retributive Model is emerging. This new Retributive Model, rather than simply focusing on the need to punish and sanction the offender, seeks to enhance victim participation in the system. A more thorough analysis is provided in Part Two of this paper.

Part Two: Reforms Towards the Retributive Model

Existing juvenile justice systems were characterized as either Welfare Model, on one end of the spectrum, or Retributive Model, at the other end of the spectrum. However, dissatisfaction with the underlying theory of each model led to reforms which seek to address the perceived failure of each model.

Reforms in the existing juvenile justice system in some jurisdictions represent shifts towards a new form of Retributive Model which builds the immediate support group of the probable offender and enhances greater participation and role of the victim. Changes in Japan’s juvenile justice system represent a new form of the Retributive Model which provides for greater role of the victim in the sanctioning process. On the other hand, reforms in some jurisdictions in the United States represent a shift towards a new form of Retributive Model which builds the deterrent effect of positive community restrictions such as parent responsibility ordinances and juvenile curfews.

A. Japan’s Juvenile Law Reforms

1 Present State of System

The objective of the Juvenile Law of Japan is expressed in Article 1 thereof which provides: “The object of this law is, with a view to the wholesome rearing of juveniles^[9], to carry out protective measures relating to the character correction and environmental adjustment of delinquent juveniles and also to take special measures with respect to the criminal cases of juveniles and adults who are harmful to the welfare of juveniles.”

The protective nature of the Juvenile Law of Japan is evident in the following powers and functions of the Family Court:

(a) The Family Court, in making investigations of cases involving juveniles, must make every effort to efficiently use the “medical, psychological, pedagogical, sociological and other technical knowledge, especially the result of the physical and mental examination conducted in the Juvenile Classification Home, in regard to the conduct, career, temperament and environment of the juvenile, his guardians or of other persons concerned.”
(b) The Family Court may issue a warrant against a juvenile when “necessary for the welfare of a juvenile who is in urgent need of protection.”
(c) When necessary for conducting hearing and within 24 hours after the juvenile’s appearance before the Family Court, the latter may avail of the following measures: (i) place the juvenile under supervision by a Family Court Pre-sentence investigator; and (ii) commit the juvenile to the Juvenile Classification Home for a period not exceeding two weeks, renewable for another two week period.
(d) In cases where the detention of a juvenile to a Juvenile Classification Home is not immediately possible, the Family Court may temporarily order his detention in a place specially prepared for the purpose within the compound of the nearest Juvenile Training School or jail for a period not exceeding 72 hours.
(e) With respect to cases in which the Family Court has conducted hearings, the following measures may be availed of: (i) place the juvenile under the probationary supervision of the Probation Office; (ii) commit the juvenile to a Child Education and Training Home (Kyogo-in) or a Home for Dependent Children; (iii) commit the juvenile to a Juvenile Training School.

Japan’s juvenile justice system has been classified by some authors as a welfare model because of its emphasis on rehabilitation and development of skills and competence of juvenile offenders. Yokoyama classifies the system as a welfare participatory model^[10] because of the fact that many citizens have participated as volunteers in activities to realize the purpose of the Juvenile Law.

However, Japan’s juvenile system may be characterized as a Restorative Model due to the following reasons:

First, the Japanese juvenile system emphasizes the need for accountability of juvenile offenders through confession and remorse. Haley describes the system as follows:^[11]

In my view, none fits better, however, than Howard Zehr’s “restorative lens” in bringing into focus the reintegrative emphasis of the Japanese approach. Whatever the rubric, the Japanese approach reflects a commitment by law enforcement authorities to the restoration of the offender to the community. Hence, in order for the police, prosecutors, and judges to respond with leniency, the offender must first acknowledge guilt, express remorse, and compensate any victims. The offender’s attitude alone is insufficient, however, to justify such leniency.

The active participation of victims and members of the community are also encouraged by the system. Victim restitution and pardon are critical elements of the system. Thus,^[12]

For wrongdoers to seek out those whom they have harmed and to seek forgiveness by apologizing and offering compensation is so intrinsic and natural that most Japanese take such responses forgranted. xxx In cases where direct negotiation between the wrongdoer and the injured party is difficult or considered inappropriate, third-party intervention or assistance is an equally normal response. Resorting to mediating go-betweens has been historically a common pattern of conflict negotiation in Japan. Japanese parents and teachers are thus likely to respond to conflicts between children more as mediators than as judges or adjudicators. Mediation is also preferred to adjudication as a means of ensuring party control over the outcome by the parties to a dispute or conflict. Again, Japanese take for granted the utility of mediators in facilitating negotiation between victims and offenders for compensation and pardon as well as their availability. There are no victim offender mediation programs in Japan. No mediator training agencies exist. There are no statistics or studies. Mediation is a normal aspect of daily life. Those in a position of authority or influence are expected to act as go-betweens or intermediaries in the settlement of disputes. Negotiating the restitution for victims of crime may be more serious and perhaps more onerous task; nonetheless, it is one many persons are expected to undertake on behalf of these with close family, community or friendship ties. The restorative model and all of its essential elements thus fit quite naturally within the Japanese cultural and institutional matrix.

Second, the system focuses on competency development of the juvenile offender. Thus, juvenile training schools specialize in vocational training and vocational guidance. Some of the workshops offered to male juvenile offenders are carpentry, metalworking, word processing, printing by computer, lathe machinery, electricity, automobile mechanics, plumbing, welding and heavy construction machinery. In some training schools, juveniles completing selected courses such as the laundry and electrical work course can obtain licenses to practice the skills learned by passing prefectural government examinations.

Third, the Japanese juvenile system ensures public safety through building the capacity of communities and neighborhood institutions to supervise juvenile offenders and prevent delinquency. Thus, town associations organize many activities (e.g., festivals, athletic meetings, measures for traffic safety, recreational activities for the elderly and children) that enhance neighborhood solidarity within a city and help prevent juvenile delinquency. In addition to the village and town associations, many civil groups participate in the efforts to curb juvenile delinquency. For example, many socio-civic organizations such as the mother’s associations are involved with juveniles. The informal, preventive activities by these organizations are usually encouraged by local government, law enforcement agencies and juvenile justice agencies to supplement formal social control.

2 Recent Reforms

Recent reforms in the Japanese Juvenile Law of 1948 show a shift towards a more Retributive Model. Law No. 142, enacted in November 2000, introduced the following changes:

First, the minimum age at which juveniles can be held criminally responsible for their acts was lowered from sixteen (16) to fourteen (14) years. It is now possible for a fourteen (14) year old juvenile who has committed a serious offence to have their case referred to the prosecutor for criminal prosecution (Article 20 of the revised law).

Second, in principle the Family Court should send all juvenile murder suspects aged sixteen (16) years or older to the prosecutor so that they can be put on criminal trial (Article 20(2) of the revised law). Although, it still remains a discretionary power, the presumption would now appear to be in favor of such referrals.

Third, Article 22 has been revised so that the previous emphasis on the “cordiality” of the proceedings has also been supplemented by the requirement that juvenile offenders must engage in “soul-searching” over the crimes they have committed.

Fourth, a newly added section (Article 22(2)(i)) provides that in serious cases, the Court has discretionary power to allow the prosecutor to participate in the hearing.

Fifth, Article 22(3) requires that a lawyer for the defendant be present if a prosecutor is involved.

Sixth, under the revised law (Article 25(2)) judges have the power to issue warnings and instructions to parents of juveniles falling under their jurisdiction. It is as yet unclear what form such admonitions might take, but this new emphasis on parental responsibility reflects broader concerns about socially irresponsible parenting as a possible cause of the current problem.

On the other hand, amendments strengthening the rights of victims reinforce the restorative aspect of the juvenile system by encouraging greater participation and role of the victim. Thus, victims and their relatives have the right to be notified of the Family Court’s findings (Article 31(2) of the revised law), and are to be given access to copies of investigation records (Article 5 of the revised law). Victims or relatives will also be given an opportunity to present their views at any hearing that is held (Article 9(2) of the revised law).

As stated, current reforms in the Japanese Juvenile Law represent a move towards a more Retributive Model. However, some of the changes seem to dilute the objective of Article 1 of the Juvenile Law, namely the wholesome rearing of juveniles. Article 1 thus exhorts the state to “carry out protective measures relating to the character correction and environmental adjustment of delinquent juveniles and also to take special measures with respect to the criminal cases of juveniles and adults who are harmful to the welfare of juveniles.”

Specifically, the possibility for a fourteen (14) year old juvenile who has committed a serious offence to have their case referred to the prosecutor for criminal prosecution; the discretion of Family Courts to send all juvenile murder suspects aged sixteen (16) years or older to the prosecutor so that they can be put on criminal trial (Article 20(2) of the revised law); and, the discretionary power of the Court to allow the prosecutor to participate in the hearing all seem to dilute the cordial and informal nature of the proceedings. The changes to the juvenile justice system gives it a semblance of the more formal adult trial. The cordiality of the proceedings may in fact give way to a more formal and litigious trial which contradicts the spirit and nature of the Juvenile Law as expressed in Article 1 thereof.

B United States- Due Process Safeguards, Parent Liability Statutes and Curfew Statutes

1 Present State of System

The United States Juvenile Justice System was conceptualized as a Welfare Model based on the philosophy of parens patriae. The juvenile system sought to rehabilitate juveniles and treat them not as criminals, but as children needing treatment, care, education and protection. The function of juvenile court was to protect juveniles as they were thought unable to care for themselves. Juvenile proceedings were considered civil and not criminal, and were therefore not subject to procedural due process protections. The juvenile system and its parens patriae philosophy remained relatively stable from its creation in 1899 until 1966.

However, several decisions rendered by the United States Supreme Court (“Court”) from 1966 show a shift from the Welfare Model towards the Retributive Model due to increasing concern with procedural due process. Juvenile delinquency proceedings were brought nearer to adult proceedings through the imposition of various due process safeguards which were previously applicable only to adult criminal trials.

Due Process Safeguards – Kent vs. Waiver; In Re Gault

In Kent vs. Waiver, ^[13] the issue was the process of transfer of the juvenile case to the adult criminal court for trial. Kent, a sixteen year old youth was arrested and charged with housebreaking, robbery and rape. The District of Columbia criminal code provided for transfer to the adult criminal court after a full investigation had taken place. The juvenile court, however, waived Kent to adult court without arraignment and probable cause hearing. Kent was indicted in adult court by the grand jury and found guilty of housebreaking and robbery and not guilty by reason of insanity on the rape charge.^[14]

The Court reversed the waiver and stated that the transfer procedure was invalid because it was done without hearing, without assistance of counsel and without the judge stating his reasons for transfer. While the Court acknowledged the substantial latitude given to the juvenile court in determining if it should retain jurisdiction over a juvenile, it stressed that this latitude is not a "license for arbitrary procedure" by the court.^[15]

Thus, in Kent, the Court began to recognize that constitutional rights given to adult offenders, such as due process, should exist in the juvenile court system as well -- especially in transfer proceedings. The juvenile court was beginning to act as a court rather than a parent in affording its offenders constitutional rights enjoyed by adult offenders.^[16]

In the case of In Re Gault,^[17] the Court incorporated adult constitutional rights into the juvenile courts, further diluting the parens patriae philosophy. Gerald Gault, a fifteen (15) year old juvenile offender on probation for theft, was arrested due to a verbal complaint from a neighbor accusing him of making an obscene telephone call to her home. Gault was detained in a juvenile detention center pending the proceedings against him. He was not informed of his Miranda rights nor of any other rights to which he was entitled. Neither were his parents informed of his arrest. However, his mother was informed that a hearing would be scheduled the next day. Records of subsequent proceedings were not recorded and hence, no transcripts were available. Gault was found guilty and sentenced to an industrial school in Arizona until he reached the age of twenty-one.

The Court reversed and declared that all juveniles were entitled to a constitutional right to: (1) notice, hearing and the opportunity to be heard; (2) counsel; (3) confrontation and cross-examination of witnesses; and (4) invoke the privilege against self-incrimination. The Court maintained that its decision would not destroy the juvenile justice system, although it drastically altered it.

The Court further limited its holding to only the adjudicatory hearing to delinquency proceedings, where a criminal violation is alleged and confinement may occur.^[18]

Standard of Proof in Juvenile Cases – In Re Winship

The Court futher held in In Re Winship ^[19] that the standard of proof required in delinquency cases where the imposable punishment was deprivation of liberty was “beyond reasonable doubt” and not “preponderance of evidence.” The case involved a twelve-year old boy who entered a locker and stole U.S.$112 from a woman’s pocketbook. The petition charged the youth with delinquency, alleging that his act, “if done by an adult would constitute the crime of larceny.” When the standard of proof problem was raised, the judge relied on Section 744 (b) of the New York Family Court Act, which provides that “any determination at the conclusion of [an adjudicatory] hearing that a [juvenile] did an act or acts must be based on a preponderance of the evidence.” Winship was ordered to be placed in a training school for an initial period of eighteen (18) months, subject to annual extensions of his commitment until his eighteenth birthday.

Historically, juvenile courts were classified as civil courts. Hence the standard required to prove guilt of the accused was “preponderance of evidence”.

The Court in the case of In Re Gault, however, clearly stated that the standard of proof to be used in juvenile delinquency proceedings should be “proof beyond reasonable doubt” and not merely “preponderance of evidence.”

2 Recent Reforms

Growing dissatisfaction with the current state of the juvenile system has led to two sets of reforms in different parts of the United States. On one hand, several reforms show the increasing emphasis on the Retributive Model and the need to impose stronger punitive sanctions on the offender and those responsible for his care and supervision. These are the parent responsibility ordinances and curfew ordinances. On the other hand, other reforms as discussed in Part Three represent a shift towards the Restorative Model.

Parent Responsibility Ordinances

One response to the rise in juvenile crime is the enactment of parental responsibility ordinances. These ordinances punish parents for the misdeeds of their children. Although these ordinances generally penalize a parent for knowing or willful participation in the child's infraction, some ordinances impose criminal liability where the parent has minimal or no knowledge of the minor's actions.^[20]

Juvenile Curfews

Other reforms are evident in the area of juvenile curfew. Stricter juvenile curfew statutes were recently enacted at the federal, state and local level. A 1996 Justice Department survey found that 73% of the 200 largest United States cities have enacted curfews in response to present juvenile crime rates.^[21]

Some of the objectives of juvenile curfew laws are: reduce criminal activity on the streets, decrease juvenile gang activity, lessen susceptibility of juveniles to negative peer influences, reduce the pool of victims of crime and assist parents in imposing parental responsibility.

Part Three: Reforms Towards The Restorative Model

A. United States Teen Courts and Community Based Wilderness Programs

Several reforms in the present United States Juvenile System show a shift towards the Restorative Model. Various juvenile diversion programs such as the teen court programs and other community diversion programs focus on the rehabilitative aspect of the Restorative Model and the corresponding goals of offender competency development and community protection.

1 Teen Courts

A teen court^[22] is a youth-run diversion program where a juvenile offender is prosecuted, defended and sentenced by his or her peers all of whom are eighteen (18) years old or younger.^[23]

The program attempts to discourage juvenile delinquency among first time offenders. The local community usually takes responsibility for developing a teen court program.

Depending on the jurisdiction, a teen court accepts a juvenile delinquent at any point during the delinquency process up to formal adjudication. Offenses which are subject to teen court diversion include vandalism, trespass, burglary, petty theft, assault, arson, dangerous weapons, theft, drug violations, disturbing the peace, and stolen property.^[24] The typical juvenile referred to teen court is a first time offender below sixteen (16) years old who is willing to admit guilt, when the structure of the teen court is dispositional. A prior admission of guilt is not necessary when the teen court is adjudicatory in nature. After the teen court identifies the juvenile as a willing candidate for the system, a program coordinator meets the juvenile and his or her parent or guardian to discuss the procedure for, and dates of, hearing. The format of the hearing depends on which of the four structural models is used by the teen court.

There are four teen court models^[25]: (1) Youth Judge Model where volunteers under the age of nineteen (19) act as judge, jury, attorneys and support staff;^[26] (2) Adult Judge Model where an adult serves as the judge;^[27] (3) Youth Tribunal Model where several youth judges sitting en banc decide the case after oral arguments presented by youth attorneys from each side;^[28] (4) Peer Jury Model where a panel of jury composed of youth volunteers disposes of the case after questioning the juvenile, the parents or guardian, and any other witnesses.^[29]

After the hearing, the teen court determines the appropriate sanction for the juvenile taking into consideration, among other things, the defendant's age, level of offense, and remorse.^[30] The most common sanctions are community service and letters of apology, followed by jury duty in a subsequent teen court trial, lifestyle classes and restitution. In certain cases, the offender is also required to serve as member of the teen court jury for subsequent cases. The juvenile must comply with the terms of the sanction within a certain period to avoid redirection to the original referring agency.

Most records related to the case are destroyed once the juvenile successfully completes the teen court process, excluding records of referral or participation that are necessarily maintained to limit teen courts to first time offenders.

Teen court programs, as diversion measures from juvenile court, are consistent with the goals of the Restorative Model because of the following reasons:

First, offenders are made accountable to the victim and the community through the teen court process. The offender is made accountable by his peers^[31] for the harm caused by his actions and is motivated to repair the harm done to the victim and the community.^[32] Thus,^[33]

Although the teen court system is not a concept with universal appeal, advocates list many reasons to support trial by peers. The most cited reason is the positive use of peer pressure. Proponents argue that a teen court setting channels a negative, unavoidable life experience like peer pressure into positive energy. The same peer pressure that compels teenagers to commit minor offenses can make abiding the law "cool" and give heretofore-apathetic juvenile offenders a greater respect for law and order. Teen courts also report high levels of customer satisfaction when compared with the traditional juvenile justice system, where the customer is the juvenile and his or her parent or guardian. High levels of customer satisfaction are a logical by-product of a system that dispenses relatively mild sentences and operates without leaving a permanent record. Customer satisfaction is a good measuring device for upscale department stores and long distance service providers, but it has no place in a delinquency setting. The most powerful measure of a program's success may be the rate of recidivism. Finally, it is often argued that a combination of the above factors contribute to reduced recidivism rates in teen court participants.

Second, the teen court creates innovative sanctions which focus on reintegration of the offender into society. In particular, the requirement that the offender serve as member of the teen court jury for subsequent cases enables the offender to act as a productive member of society.

Third, by involving the offender in community-based programs, community safety is enhanced.

2 Community Based Wilderness Programs

The earliest outdoor program for juvenile delinquents was established in the 1930’s in the Forestry Department in Los Angeles County. Typical work projects performed by juvenile offenders at forestry camps were conservation, park development, road construction, safety programs, and farming, supplemented by individual and group counseling, recreational, educational and religious programs.

By 1996, six pilot programs had been developed in three areas of the United States: Florida, Utah and Washington, D.C. The two programs in Washington, D.C. are nonresidential. They are held in six week cycles and target both at-risk youth who are eight to fourteen years old and juvenile offenders who are sixteen years old and above. The other four programs are residential and serve juvenile male offenders in Utah and Florida who are twelve to eighteen years old. All of the programs combine educational classes with structured opportunities for juvenile offenders who become involved in environmental work, parks and forestry work, refuge ecology, and wilderness experiences. Work crews handle such tasks as lawn mowing, trail building, removing old fencing, beach cleanup, exotic vegetation control, maintenance equipment, seed mixing, building corrals for wild horses, building visitors centers and picnic areas in public parks, and preservation and restoration of wetlands.^[34]

At present, several model programs exist: (1) Associated Marine Institutes in Florida, Louisiana, South Carolina, Texas and Delaware; (2) Camp Woodson organized by North Carolina’s Division of Youth Services in Fairview, North Carolina; (3) Eagle Nest Camp Experiential Reintegration Program in New Mexico; (4) Eckerd Foundation Wilderness Educational System Program with operations located in Florida, Georgia, New Hampshire, North Carolina, Rhode Island, Tennessee and Vermont; (5) Hurricane Island, Outward Bound in Florida, OceanQuest in Pennsylvania; (6) Spectrum Wilderness in Illinois; (7) Stephen L. French Youth Wilderness Homeward Bound Program organized by the Massachusetts Division of Youth Services; (8) Thistledew Camp in Minnesota; (9) VisionQuest in Arizona; (10) Wilderness Camping Program organized by the Alabama Youth Services Division; (11) Wolfcreek Wilderness School organized by the Georgia Division of Youth Services; and (12) Youth Challenge Wilderness Expedition Program in Connecticut.

The abovementioned community based programs contribute to the rehabilitative aspect of the Restorative Model through instilling work ethic and discipline on the part of the juvenile offender. In addition, these programs appear successful in helping juvenile offenders earn money needed to repay their victims. One such program is operated by the Genesis Youth Center:^[35]

(T)he Genesis Youth Center, a seventy-two bed community based residential facility located near Salt Lake City, Utah, works cooperatively with the state restitution program. The youth participants are paid minimum wage, and their earnings are allocated to the Utah Department Youth Services and to the juvenile courts in order to pay victim restitution. During the first six months of the program’s operation, 178 participating juvenile offenders “earned a total of $103,789 in victim restitution.

B. Belgium’s Victim-Offender Mediation Program

1 Present State of System

The Belgian national law on juvenile protection, enacted on 8 April 1965, is based on the Welfare Model.^[36] The Juvenile Court proceedings consists of two stages: first, preliminary investigation stage wherein the court examines and inquires into the background, family history and profile of the juvenile and his family; and second, trial stage. During preliminary investigation, the Judge has the power to avail of provisional measures. Most due process safeguards, including the right to counsel, are applicable only during the trial stage. However, since juvenile cases are frequently disposed of during preliminary investigation, there is increasing concern for the application of due process also during this stage. Thus, in some judicial areas in Belgium, the right to counsel, not contemplated by the law as applicable during the stage of preliminary investigation, has been organized by the bar.

Since 1980, power has been divided between the state, three economic regions (Flanders, Brussels and Wallonia) and three cultural communities (French-speaking, Dutch-speaking and German speaking).^[37] The law for institutional reforms of 8 April 1988 allocates the respective powers and functions of the state and the cultural communities: (a) the state retains jurisdiction over measures dealing with judicial protection of juvenile offenders whereas cultural communities are entitled to enact rules and determine measures for dealing with social and judicial protection of endangered minors; (b) as to pronouncement of disposition measures, the courts will be entitled to order measures concerning juvenile offender while cultural communities are entitled to decide appropriate measures for endangered minors. Also, cultural communities have exclusive power to subsidize and register the private agencies which will be implement the measures taken against both juvenile offenders and endangered minors.

2 Recent Reforms

Under the 1965 Juvenile Law, one of the disposition measures available to the juvenile court is probation on the condition that the juvenile offender will provide philanthropic or educational service. Pursuant to this mandate, cultural communities initiated local programs and experiments with community service orders, including victim-offender mediation^[38] program.

Since 1985, nonprofit organizations have been registered and subsidized by the French community in order to organize community service orders after the appropriate decision of the juvenile court. Since 1988, each of the 13 judicial areas of the French community has thus been served by at least one private agency working outside the juvenile legal system but dependent on the juvenile court for referral of cases. The programs organized by these agencies have the following characteristics in common:^[39]

“emphasis on the educational aspect for the adolescent; attention drawn to the legal and defence rights; avoidance as much as possible of a widening of social control; and focus on a nominal compensation (or restitution) by means of community service order rather than a focus on the victim. In spite of the last feature, it is in this institutional framework that mediation between delinquents and their victims could find a substructure and a possible development.”

In January 1991, one program focusing on mediation was launched in the judicial district of Liege by Arpege, a nonprofit organization. The program dealt with juvenile offenders aged 14 to 18 who were referred by juvenile court with the recommendation that they do community service. The target offenders had previously acknowledged facts qualified as offenses and 80% where first time offenders.

The program employed the following procedure:^[40]

First, the juvenile court decides the juvenile case, orders the juvenile offender to perform community service and refers the case to Arpege.

Second, Arpege initiates discussions with the juvenile offender and evaluates the possibility of victim-offender mediation.

Third, the team members of Arpege who dealt with the juvenile offender render a report to the juvenile court on the possibility of mediation.

Fourth, where appropriate, the juvenile court prepares a modifying order: (a) acknowledging the parties willingness to undertake mediation as stated in the Arpege report; and (b) either reducing the number of hours of community service to be performed by the juvenile offender in case the mediation is carried out or allowing the mediation process to fit into the number of hours of community service to be performed.

Fifth, Arpege then proceeds to evaluate both the juvenile offender and the victim. The juvenile offender is evaluated within a period of six weeks. He is informed of the consequences of meeting the victim. His perception of the offense and his attitude towards the victim are evaluated. The amenability of the victim to mediation is also evaluated.

Sixth, upon acceptance by the juvenile offender and the victim of the possibility and principles of mediation, both are summoned to a neutral venue. Two intervenors are present during the first mediation meeting. The first intervenor leads the meeting while the second plays a support and feedback role. Details of the offense, its consequences and the possibility of a reparation agreement are discussed. Subsequent meetings may follow.

Seventh, a final report on the details of the mediation and the terms of the reparation agreement between the juvenile offender and the victim is then submitted to the juvenile court.

C New Zealand’s Family Group Conferences

1 Present State of System

The Juvenile Justice System of New Zealand was initially conceptualized on the basis of the Welfare Model. The Child Welfare Act of 1925^[41] created the juvenile court and the child welfare branch with responsibility for the supervision and care of both juvenile offenders and neglected children. The law gave priority to the "needs" or "best interests" of the child.

In the 1950s and early 1960s, new punitive sanctions were imposed on juvenile offenders: sixteen-year-old boys could be sentenced to detention centers;^[42] boys aged fifteen and sixteen could be sentenced to periodic detention; boys and girls aged fifteen and sixteen were eligible for Borstal training; and, in exceptional circumstances, children could be sentenced to imprisonment. The age of criminal responsibility was raised from seven to ten in 1961.^[43]

The subsequently enacted Children and Young Persons Act of 1974 provided for the following:^[44]

First, juvenile offenders below fourteen years old were assigned to children's boards (“boards”) which consisted of a police officer, a social worker, a representative of the Department of Maori and Island Affairs, and a local community member. The boards had jurisdiction only where the child admitted the offense and there were no outstanding issues with respect to reparation. The board could undertake the following measures: (1) no further action; (2) warn the child; (3) counsel the child (or the parents); (4) refer them to another agency for counseling or help (provided the child and parents agreed); (5) refer the case back to social welfare with a recommendation that proceedings be brought in court; and (6) recommend community work on an informal basis. The children's boards were intended to keep children under fourteen years out of the courts, to encourage families to discuss their difficulties and to participate in decisions about how best to deal with their children's offending, and to provide families with support.

Second, Section 25(2) thereof made it impossible to bring criminal proceedings against a child. Under section 27(2)(f), a child whose offenses warranted court action had to be made subject to a complaint that he or she is "in need of care, protection, or control." This section also made it clear that the commission of an offense per se was not sufficient to warrant such action; the child's offending had to be of a "number, nature, or magnitude" that indicated that the child was "beyond the control" of his or her parents or that it was "in the interests of his future social training or in the public interest" that such a finding be made.

Third, conferences between specialist police officers and social workers (and sometimes a representative of the Department of Maori and Island Affairs) were allowed to discuss the necessity of prosecution of juvenile offenders fourteen years but below seventeen years old who had not been arrested.

Fourth, the families of juvenile offenders were entitled access to, and the right to rebut, the reports written about them by social workers.

Fifth, the following measures were allowed: discharges, admonitions, fines, restitution, supervision, committal to the care of the director-general of social welfare, counseling or other assistance for parents and the possibility of attaching two new conditions to a supervision order: a semicustodial measure and community work.

Sixth, section 36(1)(j) of the law provided that young persons who were aged fifteen and older for whom adult measures were thought appropriate could be convicted and transferred to the magistrate's court for sentencing.

2 Recent Reforms

The Children, Young Persons and Their Families Act 1989 provided for reforms which represent a shift towards a Restorative Model: it introduces procedures such as family group conferences to encourage young offenders, families, and victims to come to an agreement about how offenses should be dealt with. These agreements are expected to take into consideration the needs of the victims as well as the well-being and accountability of juvenile offenders.

Under the Act, the family group conference functions either as an alternative to juvenile court for juvenile offenders who have not been placed under arrest (“non-arrest conferences”) or as a mechanism for making recommendations to judges before sentencing of arrested juvenile offenders (“arrest conferences”).

Due to the mandatory nature of family group conferences, police officers cannot refer juvenile offenders who have not been arrested to the juvenile court without first undergoing the family group conference. Also, judges cannot sentence arrested juvenile offenders without first referring them to a family group conference and taking into account its recommendations. The family group conference is thus consistent with the Restorative Model which advocates accountability of juvenile offenders and greater participation and involvement of victims.

The Act provides for the following features of family group conference:

First, it involves the juvenile offender, members of his or her family, whanau (family group), invited guests (e.g., friends, teachers, youth club organizers, and the like), the victim or victims or their representative, victims' support persons, the police, the juvenile offender’s lawyer (usually only in court referred cases), and, sometimes, a social worker.

Second, the conference is facilitated by the youth justice coordinator,^[45] trained social workers who work for, and are supervised by, managers from the Department of Child, Youth and Family Services.^[46] The duties of coordinators include: meeting with the police to explore alternatives to commencement of criminal proceedings; preparing the parties for the family group conference;^[47] convening the conference;^[48] recording any decisions made; notifying appropriate people of the outcome of the conference; and, on occasion, monitoring compliance with the conference's decisions.

Third, the venue of the family group conference is determined by agreement of the parties. Thus, conferences can take place in the family's home or at a marae (meeting house), community rooms or rooms in buildings managed by the Department of Child, Youth and Family Services.

Fourth, the family group conference considers only cases in which the young person admits the alleged offense or has already been found guilty in court; also, all the participants are expected to actively participate in the proceedings and in the decisions about the eventual outcome.

Fifth, the discussion and the resulting outcomes should focus on the offense committed by the juvenile offender and the consequences thereof.^[49] However, section 208(g) of the 1989 Act states that, in determining outcomes, due regard should be paid to the interests of the victim.^[50] Thus, the following dispositional measures may be resorted to: apology to the victim; reparation; and community work,^[51] including, donations to a charity, involvement in a training program, supervision by a social worker or community organization, a residential placement (for a short time) and, occasionally, a period in custody.

Sixth, the decisions agreed upon at the family group conference are binding if all those present at the conference agree and in appropriate cases, when approved by the juvenile court.

In police-referred non-arrest conferences, the police has to decide whether or not and how to proceed if participants cannot reach an agreed outcome or recommendation. However, the conference can be reconvened at the request of any of the parties (e.g., if the young offender does not comply with the agreement), and a date can be included in the agreement for a review of the plan.

With respect to court-referred arrest conferences, the judge has to decide the appropriate sentence if the parties cannot reach a consensus during the family group conference.^[52] The juvenile court can adjourn hearing pending the completion of the agreed conference plan and, in all cases other than those withdrawn or discharged, can require reports from the juvenile offender upon completion of the conference plan or court order.

CONCLUSION

Different states have adopted different models of juvenile justice in accordance with the needs and concerns of their particular societies. Where the prevailing theory of crime in a particular state focused on individual treatment of the offender rather than retribution, the juvenile justice system of that state was substantially based on the Welfare Model. On the other hand, where the prevailing theory of crime in the state emphasized punishment of the offender and due process safeguards, features of the Retributive Model were predominant in its juvenile justice system.

However, the juvenile justice system of any given state cannot be characterized as purely Welfare or Retributive since aspects of both may exist, although less predominantly, in its juvenile system. An analysis of the reforms in a given system show that shifts towards the opposite spectrum corresponded with growing dissatisfaction with the present state of the system. Thus, when the present system failed to arrest juvenile crime, reforms in legislation adopted features of the opposite model with the expectation that these reforms will cure perceived defects in the system.

Reforms in the existing juvenile justice systems provide for greater community pressure and greater victim participation in the sanctioning process. The increasing concern for the victim is reflected in both the new form of Retributive Model and the Restorative Model.

In particular, reforms in the old Retributive Model reflect the growing concern for the victim and the need to enhance victim participation in the system. Rather than simply focusing on punishment of the offender through state processes, the victim is given greater participation and role in the sanctioning process. This can be seen in the reforms made in Japan’s juvenile justice system. Another important reform in the Retributive Model is the building of positive community support and pressure such as the parent responsibility ordinances and juvenile curfew statutes in the United States.

The framework of Restorative Justice in the context of the juvenile justice system represents an alternative approach towards juvenile crime. Unlike the previous Welfare Model and the old Retributive Model which focused solely on the offender and the appropriate response towards the offender’s unlawful acts, the Restorative Model uses a balanced approach through soliciting the active participation of the community to which the offender belongs and the victim whom the offender has harmed.

The emergence of the Restorative Model was facilitated by the perception that the previous models of juvenile justice were inadequate in preventing juvenile crime. The offender was not made accountable for his actions simply by individual treatment or incarceration since he did not realize the sociological, emotional and psychological impact of his actions on society and his victim. The Welfare Model, focusing solely on individual treatment of the offender through examining his personal circumstances, was inadequate because the offender was not confronted with the psychological impact of his actions on the victim. The old Retributive Model, focusing on punishment and incarceration of the victim, isolated the offender from society and made him less bound to his family, his friends and social circle. Thus, there was less pressure on the offender to reintegrate into society through developing socially acceptable and lawful behavior. The offender became more detached from society and was less morally bound to abide by the law of that society.

The Restorative Model addressed both inadequacies through focusing on reintegration of the offender into society and encouraging the participation of the victim in the juvenile justice process. Diversion from the formal juvenile justice system focuses on methods which will encourage the juvenile offender to reintegrate himself into society, to engage in productive community work and to strengthen social ties. Examples are found in the teen court program and community based wilderness programs of the United States. The active participation of the victim in rehabilitiating the offender is also encouraged through such diversion programs as Belgium’s victim-offender mediation program and New Zealand’s family group conferences.

It should be noted that the new Retributive Model and the Restorative Model are characterized by the same concern for the victim and the need to enhance victim role in the juvenile justice process. In this aspect, both models hope to give greater voice to an important actor in the system who was previously neglected and ignored in the sanctioning process. Through ensuring the participation of the victim, the justice system is deemed more complete and balanced under both models.

BIBLIOGRAPHY

A. Books

Carnegie Council on Adolescent Development. A Matter of Time: Risk and Opportunity in the Nonschool Hours, (New York, NY: Carnegie Corporation of New York, 1992).

Dalley, Bronwyn, Family Matters: Child Welfare in Twentieth Century New Zealand, Auckland: Auckland University Press, 1998.

Dongier, Sylvie & Van Doosselaere, Denis, “Approaching Mediation in Juvenile Court: Rationale and Methodological Aspects”, Restorative Justice On Trial, H. Messmer and H.U. Otto, eds., Kluwer Academic Publishers: Netherlands, 1992.

Doolan, M. P., Youth Justice- Legislation & Practice, in the Youth Court in New Zealand.: A New Model of Justice, B.J. Brown & F.M. W. McElrea eds., 1994.

Gale, Fay, Naffine, Ngaire and Wundersitz, Joy, eds. Juvenile Justice – Debating the Issues, Allen & Unwin Pty Ltd.: Australia, 1993.

Haley, John O., “Victim-Offender Mediation: Japanese and American Comparisons,” Restorative Justice on Trial, H. Messmer and H.U. Otto, eds., Kluwer Academic Publishers: Netherlands, 1992.

Kerner, Hans-Jurge, Marks, Erich & Schreckling, Jurgen, “Implementation and Acceptance of Victim-Offender Mediation Programs in the Federal Republic of Germany: A Survey of Criminal Justice Institutions,” Restorative Justice On Trial, H. Messmer and H.U. Otto, eds., Kluwer Academic Publishers: Netherlands, 1992.

McDonald, Dugald, Children and Young Persons in New Zealand Society, Families In New Zealand Society, edited by Peggy G. Koopman-Boyden, Wellington: Methuen, 1978.

Roberts, Albert R. ed., Juvenile Justice – Policies, Programs and Services, 2nd ed., Nelson-Hall Publishers: Illinois, 1989.

Wundersitz, Joy & Hetzel, Sue, Family Group Conferencing for Young Offenders, Family Group Conferences: Perspectives on Policy and Practice, 1996.

Yokoyama, Minoru, Juvenile Justice: An Overview of Japan, Juvenile Justice Systems International Perspectives, John Winterdyk, ed., Canadian Scholars` Press, Inc.: Ontario, 1997.

B. Journal Articles

Burns, Susan A., “Is Ohio Juvenile Justice Still Serving Its Purpose?”, 29 Akron L. Rev. 335, 1996.

Johnson, Barbara Gilleran & Rosman , Daniel, “Recent Developments in Nontraditional Alternatives in Juvenile Justice”, 28 Loy. U. Chi. L.J. 719, 1997.

Kendall, Julieta, “Can It Please the Court? An Analysis of the Teen Court System as an Alternative to the Traditional Juvenile Justice System”, 24 J. Juv. L. 154, 2003.

Lowe, Hon. Ronald W., “Law-Related Education: Teen Court--A Jury of A Juvenile's Peers”, 77 MI Bar Jnl. 800, August, 1998.

Morris, Allison, “Youth Justice in New Zealand”, 31 Crime & Just. 243, 2004.

Umbreit, Mark & Zehr, Howard, “Restorative Family Group Conferences: Differing Models and Guidelines for Practice”, 60 Fed. Probation, September 1996.

Wexler, David B., “Just Some Juvenile Thinking About Delinquent Behavior: A Therapeutic Jurisprudence Approach To Relapse Prevention Planning and Youth Advisory Juries,” 69 UMKC L. Rev. 93, 2000.

Zegers, Jean-Benoit & Price, Catherine, “Youth Justice and the Children, Young Persons, and their Families Act 1989”, 7 Auckland Univ. L. Rev. 803, 805, 1994.

C. Others

Fisher, Margaret, Youth Courts: Young People Delivering Justice, at http://www.youthcourt.net/publications/youthcourts.html.

In Re Gault, 387 U.S. 1, 1967.

In Re Winship, 397 U.S. 358, 1970.

Kent vs. Waiver, 383 U.S. 541, 1966.

Law No. 168, as amended.

[...]

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^[1] See Fay Gale, Ngaire Naffine and Joy Wundersitz, eds. JUVENILE JUSTICE – DEBATING THE ISSUES, (Allen & Unwin Pty Ltd.: Australia, 1993), p. 4.

^[2] Ibid., p. 4.

^[3] Ibid, p. 4.

^[4] Albert R. Roberts, ed., JUVENILE JUSTICE – POLICIES, PROGRAMS AND SERVICES, 2nd ed., (Nelson-Hall Publishers: Illinois, 1989), p. 379. “The general goal of “balance” suggests that policies and programs should seek to address each of the three goals in each case and that system balance should be pursued as managers seek to allocate resources to meet needs and achieve goals associated with each client/customer.”

^[5] Ibid.,p. 382.

^[6] Ibid.,p. 384. “A major priority of any justice system is to publicly denounce harmful behavior and to provide consequences for offenders. To accomplish this, a justice system must develop meaningful terms of offender accountability and consequences related to the nature and degree of harm resulting from offenses, as well as the relative culpability of the offender in causing this harm. Some writers have recently noted that societies that are most effective in controlling crime provide for a “reintegrative shaming” process in which citizens and victims are actively involved in an effort to make offenders aware of the harm caused by their behavior to the collective and to affirm community values. In these low crime societies, sanctioning is a community function in which a denunciation process is generally followed by a process of reparation to victims and the community, reintegration, conciliation, and forgiveness.”

^[7] Ibid., p. 387.

^[8] Ibid., p. 390.

^[9] Article 2 of Law No. 168 as amended (“Juvenile Law of Japan”) provides that the term “juvenile” as used in this Law shall mean any person under 20 years of age.”

^[10] Minoru Yokoyama, Juvenile Justice: An Overview of Japan, JUVENILE JUSTICE SYSTEMS INTERNATIONAL PERSPECTIVES, John Winterdyk, ed., (Canadian Scholars` Press, Inc.: Ontario, 1997), p. 5.

^[11] John O. Haley, Victim-Offender Mediation: Japanese and American Comparisons, Restorative Justice on Trial, H. Messmer and H.U. Otto, eds., (Kluwer Academic Publishers: Netherlands, 1992), p. 116.

^[12] Ibid, p. 119.

^[13] 383 U.S. 541 (1966).

^[14] Albert R. Roberts, pp. 194-196.

^[15] Susan A. Burns, Is Ohio Juvenile Justice Still Serving Its Purpose?, 29 AKRON L. REV. 335 (1996).

^[16] Ibid.

^[17] 387 U.S. 1 (1967).

^[18] Albert R. Roberts, pp. 196-197.

^[19] 397 U.S. 358 (1970).

^[20] Barbara Gilleran Johnson & Daniel Rosman , Recent Developments in Nontraditional Alternatives in Juvenile Justice, 28 Loy. U. Chi. L.J. 719 (1997). “Although all fifty states have laws that impose civil fines on parents for juvenile misdeeds, only Kentucky, Louisiana, Missouri, New York, Ohio, Oregon, and Wyoming currently impose criminal sanctions on parents who fail to control or supervise their children’s behavior. In Illinois, however, some communities have enacted local parental responsibility ordinances. One stated purpose is to oblige parents to control their children to prevent intentional harm to others. ”In the past several years, local authorities have enacted ordinances designed to motivate parents to exercise greater control over the activities of their children. Recent local ordinances not only impose liability on parents for their ‘knowing’ and ‘willful’ participation in a particular misdeed, but also impose liability for less culpable mental states.”

^[21] Ibid. “Consistent with federal policy, Illinois and its communities have sought to curtail juvenile delinquency through the passage of curfew laws. For example, Chicago requires children under seventeen (17) years old to be indoors between 10:30 p.m. and 6 a.m. on the weekdays, and 11:30 p.m. and 6 a.m. on the weekends. Chicago authorities report that over the past several years, violations of the curfew laws have slowly decreased. Specifically, Chicago Police noted 94,048 curfew violations in 1993, 83,063 in 1994 and 82,407 in 1995. In view of the success of these laws, Chicago council members have proposed harsher penalties for curfew violations. For example, council members have proposed that teenagers driving cars after curfew have their vehicle impounded. Under one such proposal, owners of an impounded vehicle would be responsible for the curfew violation plus a $ 500 car-retrieval fine in addition to the $ 105 city towing fee and the $ 10 per day storage cost. Most importantly, Illinois recently toughened its curfew statute. The General Assembly amended the statute in late 1996, and it became effective on January 1, 1997. The recent amendment subjects parents and those "in control" to greater liability for curfew infractions.” Specifically, the amendment increases penalties against parents who ‘knowingly permit a person’ in their custody or control to violate the state's curfew. The amended statute now punishes parents not just with increased fines, but also with community service.”

^[22] Julieta Kendall, Can It Please the Court? An Analysis of the Teen Court System as an Alternative to the Traditional Juvenile Justice System, 24 J. Juv. L. 154 (2003). ”Some accounts trace the first teen court to 1976 in Grand Prairie, Texas. Others maintain the Naperville, Illinois teen court, which is still in operation, started as early as 1972. Despite the early beginnings, teen courts did not become a popular diversion program until the 1990s. Today, there are almost 900 teen courts operating in at least forty-six states across the United States.”

^[23] See Hon. Ronald W. Lowe, Law-Related Education: Teen Court--A Jury of A Juvenile's Peers, 77 MI Bar Jnl. 800 (August, 1998) Teen court programs capitalize on peer influence. Formerly called "peer pressure," it is recognized as a normal, healthy and necessary part of teen behavior as well as a powerful tool in helping redirect and solve problem behavior. Rather than being reprimanded by an adult (i.e., a judge, probation officer or parent), the teens are held accountable by a jury of their peers. It is believed that this can send a strong message to youthful offenders that their community of fellow teens does not condone behaviors that break the law or abuse substances. As an aside, many offenders are surprised that the teen jurors seem less sympathetic than many adults and often impose penalties more severe than expected. For those teens involved in the program (either as volunteers or offenders sentenced to serve as jurors), teen courts provide an opportunity for them to learn to work together more effectively. Youth volunteers assume roles that require a great deal of responsibility. They are entrusted to help plan and administer the program as well as to fairly judge their peers. These real life experiences in the legal system go beyond merely educating them about the law. They often develop an attitude of "ownership" in the system. This results in teens (and eventually adults) that are more likely to defend against, rather than accept as gospel, unjust criticism of the system. In addition, "life skills" such as listening, problem solving, communication and conflict resolution are taught through the training classes and practiced in the program.

^[24] Barbara Johnson and Daniel Rosman, Recent Developments in Nontraditional Alternatives in Juvenile Justice, 28 Loy. U. Chi. L.J. 719 (1997).

^[25] Julieta Kendall, op. cit.

^[26] Margaret Fisher, Youth Courts: Young People Delivering Justice, at http://www.youthcourt.net/publications/youthcourts.html.

^[27] Ibid.

^[28] Hon. Ronald W. Lowe, op. cit.

^[29] Ibid.

^[30] Ibid.

^[31] See Carnegie Council on Adolescent Development. A MATTER OF TIME: RISK AND OPPORTUNITY IN THE NONSCHOOL HOURS, (New York, NY: Carnegie Corporation of New York, 1992)

^[32] Barbara Johnson and Daniel Rosman, Recent Developments in Nontraditional Alternatives in Juvenile Justice, 28 Loy. U. Chi. L.J. 719 (1997).

^[33] Julieta Kendall, op. cit.; See David B. Wexler, Just Some Juvenile Thinking About Delinquent Behavior: A Therapeutic Jurisprudence Approach To Relapse Prevention Planning And Youth Advisory Juries, 69 UMKC L. Rev. 93 (2000); Ronald W. Lowe, Law-Related Education: Teen Court--A Jury Of A Juvenile's Peers, 77 MI Bar Jnl. 800 (1998).

^[34] Albert R. Roberts, pp. 328.

^[35] Ibid.

^[36] See Sylvie Dongier & Denis Van Doosselaere, Approaching Mediation in Juvenile Court: Rationale and Methodological Aspects, RESTORATIVE JUSTICE ON TRIAL, H. Messmer and H.U. Otto, eds., (Kluwer Academic Publishers: Netherlands, 1992), pp. 501-511. The Belgian national law on juvenile protection passed on April 8, 1965 is based on a rehabilitative philosophy. One of the principles underlying the law was that of the United Nations` Declaration stressing the child`s best interests and the right to a harmonious development. As a consequence, the law`s center of gravity had to be the “endangered child” rather than the delinquent child. In the mind of the 1965 legislator, the “delinquent minor” (the current legal age is 18) commits acts “referred to as offenses” and theoretically cannot be punished. At the Public Prosecutor`s request, these minors appear before the Juvenile Court, which may only deal with them through care-taking, educational, and custodial measures with a few exceptions.

^[37] Ibid, p. 502.

^[38] See Hans-Jurge Kerner, Erich Marks & Jurgen Schreckling, Implementation and Acceptance of Victim-Offender Mediation Programs in the Federal Republic of Germany: A Survey of Criminal Justice Institutions,” Restorative Justice on Trial, H. Messmer and H.U. Otto, eds., (Kluwer Academic Publishers: Netherlands, 1992), p. 29. The term “victim-offender mediation” refers to programs that aim to settle conflicts between offenders and their victims through the assistance of a mediator who directs and encourages meetings between both parties. During the negotiation meetings, the offense, its consequences, and a possible compensation is discussed. In addition to agreeing upon the actual damage compensation and conflict settlement, mediation programs aim to achieve the following: first, emphasizing the victim’s position within the penal prosecution; second, making offenders realize to a fuller extent their violation of an existing norm; third, avoiding or mitigating formal punishment; fourth, sparing victim and offender further civil law procedures concerning damage and/or pain compensation.

^[39] Sylvie Dongier & Denis Van Doosselaere, op. cit.

^[40] Ibid., pp. 506-509.

^[41] See Bronwyn Dalley, FAMILY MATTERS: CHILD WELFARE IN TWENTIETH CENTURY NEW ZEALAND, (Auckland: Auckland University Press, 1998) , p. 8. Dalley describes this as New Zealand's first major child welfare legislation, and, although it was based on practices overseas, "its implementation was viewed with interest around the globe." She suggests that this was a typical pattern in the development of New Zealand social policy: "picking up some ideas, rejecting others, and devising indigenous programmes to meet child welfare needs particular to this country"

^[42] Dugald McDonald, Children and Young Persons in New Zealand Society, FAMILIES IN NEW ZEALAND SOCIETY, edited by Peggy G. Koopman-Boyden, (Wellington: Methuen, 1978), pp. 49-50.

^[43] Allison Morris, Youth Justice in New Zealand, 31 Crime & Just. 243 (2004).

^[44] Ibid.

^[45] Ibid.

^[46] Mark Umbreit & Howard Zehr, Restorative Family Group Conferences: Differing Models and Guidelines for Practice, 60 Fed. Probation, September 1996, pp. 24, 27.

^[47] Joy Wundersitz & Sue Hetzel, Family Group Conferencing for Young Offenders, FAMILY GROUP CONFERENCES: PERSPECTIVES ON POLICY AND PRACTICE (1996), p. 126.

^[48] Umbreit & Zehr, supra note 46, p. 27. Some Family Group Conference experts warn the Coordinators that, by aggressively selling the program or even telling the victim to just trust them, the family group conference process may inadvertently end up mirroring the more offender-driven criminal justice system of the United States.

^[49] Wundersitz & Sue Hetzel, supra note 47, at 128.

^[50] Ibid.

^[51] See Jean-Benoit Zegers & Catherine Price, Youth Justice and the Children, Young Persons, and their Families Act 1989, 7 Auckland Univ. L. Rev. 803, 805 (1994). Many participants of family group conferences arrive at novel and creative outcomes. For example, victims have offered their homes or businesses as venues for community work penalties. And, in one extraordinary case, a sixty-year old victim of an armed robbery, who had originally asked that the young offender be referred to the High Court for sentencing, changed her position to support a noncustodial sentence. She requested that the young man come and live with her family and work in their shop.

^[52] M. P. Doolan, YOUTH JUSTICE- LEGISLATION & PRACTICE, IN THE YOUTH COURT IN NEW ZEALAND.: A NEW MODEL OF JUSTICE (B.J. Brown & F.M. W. McElrea eds., 1994), p. 22.