Reforming the Juvenile Justice System: In Search of Justice and Accountability While the overall crime rate has steadily decreased over the last decade throughout the country, there is one segment of crime that has been increasing: criminal offences committed by juveniles (National Criminal Justice Reference Service: 2002). In the last 15 years, according to the Federal Bureau of Investigation, the incidence of criminal offences committed by juveniles (under the age of 15) increased 94%. While a number of these juveniles were convicted of committing petty crimes such as vandalism and theft, there has been a significant increase in the number of serious juvenile offences such as robberies, weapons offences, assaults, and murders. However, there is something that is not quantitatively measured in these crime statistics -- the increasing brutality and ruthlessness of the crimes committed by juvenile offenders. Over the last two decades, we have seen an increasing string of cases in the media of callous and calculated kidnappings, carjackings, and school shootings by juveniles that has resulted in a sustained call by citizens, legislators, and court officials to reform the juvenile justice system to make juvenile offenders who commit serious crimes more accountable for their actions.

In the course of this paper, I will argue two points. First, I will contend that the differentiation of treatment of individuals in the criminal justice system based on age is misguided. I will argue that such a distinction should not be population specific (i.e., filing of charges in criminal courts is based on age of accused), but task-specific (i.e., filing of charges in criminal courts is based on a number of factors including: seriousness of offence, ability to participate in their own defence, and ability to understand the consequences of their actions). Second, I will contend that, in the interest of justice, juveniles who are accused of serious crimes should be prosecuted as adults. As the trend has progressed towards prosecuting serious juvenile offences in criminal courts (rather than juveniles courts), we have seen a progressive increase in the protection of the rights of victims of crime, the public, and the accused.

I. History of Juvenile Justice System

The juvenile justice system in the United States has a long history. Until 1899, when the first juvenile court was established (beginning with the Illinois Juvenile Court Act of 1899), there was no distinction made between juveniles and adults and they were tried in the same courts. By 1945, juvenile courts had been established in every state, with their mandate being the investigation, diagnosis, and prescription of treatment for offences committed, as opposed to the adult adjudicative process in which the finding facts leads to the assignment of guilt or innocence. The focus was entirely rehabilitative and paternalistic. The court operated under the doctrine of parens patriae; the state had wide discretion to act as a parent on behalf of misbehaving juveniles (Koch 1998). The paternalistic framework of the juvenile justice system did not provide juvenile offenders with rights available to adult offenders: such as the right to counsel, notice requirements, and other due process guarantees. These procedural protections were not thought to be necessary, since the interest of the court was not the ascription of blame or guilt, but the assessment of proper rehabilitation for juvenile offenders.

Over several decades, the rehabilitative framework of the juvenile justice system has fallen into disfavour -- the doctrine of parens patriae had failed to prevent delinquency (and in many cases recidivism) in the juvenile population. In the 1980s, there were a series of reforms instituted to re-orient the focus of the juvenile courts to include considerations such as public safety and punishment into the adjudicative process. The increase in the quantity and harshness of juvenile crime lead to the advocacy of legislation which mandated more accountability for juveniles who committed serious offences (and some chronic offenders). Concomitant to a greater focus on accountability for action was the extension of greater constitutional rights to juveniles, which were previously only afforded to adult offenders. In the past two decades, greater number of juvenile cases have begun to be diverted to criminal courts -- either because of the serious of the crime (i.e., through prosecutorial discretion) or by state mandated legislation. Presently, the adjudicative framework of the juvenile justice system is predominately moving back towards crime control, punishment, and deterrence. Legislative revisions have been made to ensure that, for a wider variety of criminal offences and for a younger range of offenders, it is easier for the state to prosecute juveniles as adults for serious offences (Grisso 1996).

While most states now have moved towards allowing...

Some states (such as Delaware, Mississippi, Nevada, Ohio, and Pennsylvania) have lowered the minimum age of waivers to criminal courts to be lowered to the ages of 12-14, and removed age limitations for serious offences (Snyder and Sickmund 1995). While the justifications employed for such changes are often predicated on public safety, there has also been a corresponding benefit for juvenile offenders. Since Kent v. United States and In re Gault, (and other related case law), U.S. counts have mandated that juveniles should have the same protective rights as adults, such as due process, that where previously non-existent for juveniles.
II. Should Juvenile Offenders be Tried As Adults?

As it currently stands, adults and juveniles are treated in a number of similar manners in the criminal justice system. Both adults and juveniles share the same rights, such as the right to receive Miranda warning and to have an attorney present at most stages of police questioning and court processes; both are judged by the same standard of evidence (i.e., proof beyond a reasonable doubt); both juveniles and adults can be denied bail if they are considered dangerous to themselves or others; both juveniles and adults can be either put on probation, community treatment programs, or jail for their criminal actions.

Traditionally, the age of the accused has been the determinative factor concerning the jurisdiction of the juvenile court. However, with the ever increasing incidence of youth crime and violence, the criminal justice system and legislators have been moving towards the employment of alternative determinative factors used in adult courts, viz. The nature of the offence. I maintain that this is the most responsible determination to be made with respect to which court an individual is prosecuted in.

It is argued by proponents of the separation of juvenile and adults justice systems that a defendant must be able to make important decisions, such as the decision to waiver constitutional rights, from arraignment to adjudication and sentencing. If not, it is argued that the proper enforcement of their rights would be in jeopardy. They make the generalization that juveniles (for the most part) cannot meet this standard. It is argued that juvenile defendants are more developmentally immature, cannot adequately understand the trial process, and cannot adequately assist in their own defence, compared to their adult counterparts. The most important question that arises when contemplating whether juveniles should be treated as adults in the criminal justice system is whether such a change in policy obfuscates the fairness of the judicial adjudication process for juveniles. I contend that the distinction separate juvenile justice proponents make is an erroneous, asymmetrical generalization -- there is a significant number of adult defendants who, while passing minimum competence standards (i.e., not mental retarded, not mentally ill, etc.), do not meet this standard itself.

Competence to Stand Trial

Defendants, prima facie, must be capable of contributing in a meaningful way to their defence. This capability has been defined as individuals having "sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him." (Dusky v. U.S.).

I would maintain that, inter alia, this standard could be extended for juveniles accused of committing serious criminal offences. Just as adult defendants who are not found to be incompetent to stand trial -- by reason of mental retardation or mental illness -- juvenile defendants exhibiting such characteristics would also be excluded from criminal charges in favour of proper psychiatric treatment.

Generally, legal precedent has been clear concerning the types of abilities that need to be considered to be judged competent to stand trial (Godinez V. Moran [1993]; Bonnie 1992):

The ability to understand the nature and consequence of legal charges, trial process, and sentencing

The ability to meaningfully participate in one's defence

The ability to make important decisions concerning the exercise or waiving legal rights

While proponents of separate juvenile justice systems argue that juvenile defendants may not be able to meet these criteria, in actuality, it is the case that most adult defendants can only manifest these capabilities to a certain degree (Grisso: forthcoming). In the adult system, in order to be considered competent to stand trail, the defendants are not asked to demonstrate a perfect understanding…