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Running head: REHABILITATION V.S.

RETRIBUTION 1

Rehabilitation vs. Retribution: Reforming the Juvenile Justice System

Makaela L. Leisy

Legal Studies Academy First Colonial High School


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Abstract

The paper discusses the history of the juvenile justice system and its development since. It then

continues to speak of the difference between both rehabilitation and punishment for juveniles.

When speaking about punishment the paper provides two viewpoints on whether or not a

juvenile should be tried as an adult. The paper then speaks about the ethical and psychological

effects on a juvenile of both punishment and rehabilitation. Then speaks about the advantages

and disadvantages of both. Then speaks about real life examples of both being used, along with

how effective is is at discouraging recidivism. Then, the proposed solution states somewhat of a

compromise between the two and how they are both necessary.
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Rehabilitation vs. Retribution: Reforming the Juvenile Justice System

Easily influenced juveniles can be directed down a path where redemption is not offered.

Adolescents can be manipulated into a lifetime behind bars. It is the juvenile justice system’s

obligation to persuade them out of the life of crime. However, the system fails to fulfill its

obligations, leading to children not being persuaded away from criminal activity. The system is

tasked with two choices: rehabilitation and punishment. Many people believe that both of them

have positive effects, but there are arguments on each side. To ensure a decrease in adolescent

recidivism, one must take into account the psychological effects of the juvenile as well as the

ethics behind the treatments provided, which may cause a need for reforming the juvenile justice

system.

History of the Juvenile Justice System

The juvenile justice system was created in order to separate juveniles from adults. Before

the birth of the system, juveniles were seen as miniature adults. During the Progressive Era,

poverty stricken children ended up in a life of crime and when put with adults, the adults

influenced them to a future of criminal activity. The juvenile justice system began in the United

States in 1899, with the first court located in Illinois. The basis of the United States system is

influenced by the English Bridewell Institution. This institution is focused on honing lifestyle

skills necessary for life after the minors are discharge from the facility. The reason they teach

these skills is based off the idea that a juvenile's environmental factors influences criminal

actions due to these children’s mentality focusing on survival.At the Bridewell Institution it was

observed that through the teaching of the skills, it sparked the hope of encouraging those released

to give back to the community in a positive way. The English Bridewell Institution was held as a

precedent for other beginning institutions. These beginning organizations including houses of
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refuge, new reformatories, and separate institutions for juvenile females ("Development of the

Juvenile Justice System," n.d.).

The first courts were required to operate under the philosophy of “parens patriae.” Parens

patriae is a philosophy that began with the case Prince v. Massachusetts (1944). The case

consisted of child labor issues regarding the mother making her two children distribute the

“Watchtower” and “Consolation,”which are similar to a newspaper that pertains to religion. The

question of the case was whether or not the constitutional right to religion outweighed child labor

laws. The decision was the Constitution did outweigh child labor laws. Also if the parent is seen

as unfit to care for the child, the state has the right to take custody of the child. The philosophy

started its practice through English Common Law when the king would be held responsible for

his subjects. The philosophy within the United States is applied to those who would be mentally

incompetent to support themselves. In regards to parens patriae, the legal encyclopedia

“Ordinary Resolution to Patients' Rights” states:

The state is the supreme guardian of all children within its jurisdiction, and state courts

have the inherent power to intervene to protect the best interests of children whose

welfare is jeopardized by controversies between parents. This inherent power is generally

supplemented by legislative acts that define the scope of child protection in a state

("Parens Patriae," 2017).

In summary, parens patriae is a philosophy which the state may impose in situations that would

benefit the child. According to an interview done with Linda Bryant, now Assistant

Superintendent of the Hampton Roads Regional Jail, but who was once an attorney specializing

in juveniles, stated that when the system first started, the state was more concerned with
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rehabilitation than punishment and as years have progressed, punishment began to integrate into

the system (L. Bryant, Personal communication, 2017).

Contributing Factors

Socioeconomic Status

There are multitudes of reasons why juveniles are introduced into the juvenile justice

system. One of the reasons is being in a lower socioeconomic classes, which are more likely to

be involved within criminal activity, according to studies done by National Research Council

(MacCord, 2001). Socioeconomic class impacts a juvenile's actions greatly due to the fact that

lower classes, according to Health Service Research, have a higher probability of neglect and

gang affiliation (J., 2011). In addition, those who are in the lower classes are also more likely to

have social, emotional, and behavioral difficulties (Newacheck, Hung, Park, Brindis, & Irwin,

2003). Due to the conditions which the poverty stricken kids have to endure, they are more

likely, according to the previously stated facts, to get roundup in criminal activity. Whether it is

their lack of care, deteriorating health, or their pull towards a family setting regardless of the

impending danger, such as that of gangs. While considering economic classes, the poverty cycle

must be mentioned as well. The poverty cycle is as follows: family in poverty, child grows up in

poverty, disadvantaged in education and skills, struggles to get a job, fail to escape poverty

cycle, and ends in family in poverty ("Cycle of Poverty," 2015). The continuous cycle gives

discouragement to those involved within it; therefore, it plagues the poverty stricken population

of America and anywhere else for that matter. Until the cycle can be stopped, there will always

be discouraged juveniles pursuing a life of crime.

Family Life
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Depending on the quality of their family life, it may impose a negative effect on the child.

According to Macord, an individual on the Committee of Law and Justice and Board on

Children, Youth, and Families, “developmental risks have additive negative effects on child

outcomes, children with long-term negative outcomes who suffered perinatal complications more

often than not came from socially disadvantaged backgrounds.” The quote is saying that if there

is an event that happened to the individual that resulted in a negative outcome, the child is more

likely to believe that negative outcomes are the normal results. While family is not the main

reason one decides to either commit a crime or not, the influence of family is much greater than

we give it credit for (MacCord, 2001; DeCarlo Santiago, C., Wadsworth, M. E., & Stump,

Piquero & Steinberg, n.d.).

Ethnicity

Another universal factor of juvenile delinquency is race of the juvenile, a factor that then

continues on with adult life. According to Cathy Widom, Nancy Crowell, and Joan McCord,

editors of “Juvenile Crime, Juvenile Justice,” state “the proportion of blacks under the

supervision of the juvenile or adult criminal justice systems is more than double their proportion

in the general population”(2001). Before this sentence within Juvenile Crime, Juvenile Justice is

a series of percentages with the most outstanding statistic being “Although black youth

represented approximately 15 percent of the U.S. population ages 10-17 in 1997, they

represented 26 percent of all juvenile arrests,...”(2001). The book also contains a graph in

reference to white race and other, where the numbers of population is higher than those involved

with delinquent behavior, which is how, according to the reading, the proportions should be. The

two statistics regarding the black race are then significant in reference to their presence within

the juvenile justice system. African Americans, belonging to the minority population, according
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to Callie Harbin Burt, Ronald L. Simons, and Frederick X. Gibbons, are influenced to fit the

racial stereotypes in which is imposed on the minority. Due to these racial stereotypes authorities

are going to be what they see as “cautious” around the minority; therefore, police are

unintentionally more inclined to focus on African Americans than any other race (Burt, Simons,

& Gibbons, 2012). This reason is one accounting for the uneven distribution between the races

within the juvenile justice system. This treatment may also be connected to systematic racism a

theory which suggests that throughout institutions racism is embedded within, which is also

proven by the police being more inclined to question the African American race based off of

discrimination.

Mental Illness

Another common cause of being within the juvenile justice system is mental illness

which has been showing a prominence in previously years. “Estimates reveal that approximately

50 to 75 percent of the 2 million youth encountering the juvenile justice system meet criteria for

a mental health disorder” (Underwood & Washington, 2016). With that large of a percentage the

juvenile justice system can be considered blind to not weighing the full effects of mental illness

on children. Underwood and Washington continue to say illnesses that are the most common

within the jails have side effects which suggest irritability and aggression. This aggression gives

the individual a part of an equation to commit a crime, which could later turn into a more intense

hate crime of sorts. According to a study done by the National Research Council on children

diagnosed with mental illness, illnesses have the capability to make individuals more likely to

commit a crime and be unaware of the actions in which they partake in. They continue to say that

most of the individuals with mental illnesses do not realize that those actions were wrong. The

combination of aggression and not knowing wrong from right will make an individual more
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likely to commit a crime. This is a possible conclusion to the high population within the juvenile

justice system with mental illnesses.

Views on Juvenile Punishment

History

Punishment for juveniles who committed crimes and are brought before a court, ranges

anywhere between admittance in a youth detention program to a life sentence. Due to Roper v.

Simmons (2005), a United States Supreme court case which concluded that the death penalty

applied to juveniles violates the Eighth Amendment protecting citizens from “cruel and unusual”

punishment, the death penalty is not allowed for minors. The violation constituted through the

decision because a juvenile’s brain lacks the maturity and brain development in which is

expected of all adults. Due to the fact that the mental illness population within the justice system

is so high, another case that would apply to punishment would be Atkins v. Virginia (2002).

Atkins v. Virginia is a United States Supreme Court case that said that those with a mental illness

cannot be sentenced to death due to the lack of mental capacity and capability. Atkins v. Virginia

was the basis of the decision of Roper v. Simmons. A portion of the population believes that

adolescents are in need of punishment in order to learn the errors of their ways, although

punishment is proven to only have short-term behavioral effects. An argument brought by the

general population often in regards to juveniles is whether or not they should be tried as adults.

(JJDPA, PREA)

A portion of the population believes that teenagers close to legal adulthood deserve to be

treated as adults in a court of law. A common law associated with juveniles being treated as

adults is the Automatic Transfer Laws carried by some states, enforced in states like Illinois. A

law which states that if a 16 or 17 year old is to commit a violent crime, that they may be tried as
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an adults, while some states even allow 15 year olds to be tried as adults for serious crimes.

Occasionally, this process may also be referred to as a waiver, which is when a judge waives the

protections of the juvenile court. Minors as young as 13 within a few states are allowed to be

waived. A fewer number of states let children of any age be tried as adults for serious offenses.

Arguments for the juveniles being treated like adults are adult courts give juveniles the right to a

jury trial unlike juvenile courts. These juries then may be more sympathetic towards a minor,

and due to over crowded jails the juveniles case has a higher probability to be disposed of or they

may receive a lighter sentence. With juveniles being involved in the adult system, they are

deprived of the treatment they would get through the juvenile justice system (Scialabba, 2016;

Michon, 2017).

There are those who then believe in the alternate choice, being to keep juveniles separate

from the adult justice system at all costs. They believe that no child to be subjected to the

extreme judgement and punishment they may receive. A common reason for this view is the lack

of maturity and development within certain sections of the brain. An adolescent’s brain is still

maturing at that the development is not complete until the mid 20s. Some experts note

adolescents as being impulsive, aggressive, emotionally volatile, risk takers, reactive to stress,

vulnerable to peer pressure, focus only on short-term effects not long-term effects, and fail to

evaluate alternative choices. Other arguments to keep children seperate is the treatment that the

adolescents receive when brought within the adult justice system. Among these arguments are

the more severe sentences that the juveniles are subjected to, the options for punishment and

treatment are wider within juvenile courts, and juveniles will have to serve time in an adult

prison. Then there is also the question of the future of he juveniles considering the social stigma

around adult court sentences, and lastly, adult sentences are harder to seal than juvenile
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sentences. Therefore, the juveniles might have to endure harsher punishments than they would

have been given in the juvenile court ("The New York Times Company," n.d.).

Punishment for juveniles most often than not end in some form of incarceration, whether

in a detention center or behind bars. A psychological effect of youths being placed behind bars

are mental health issues such as depression and anxiety. The anxiety and depression created due

to the inability of the youth to form relationships within their surrounding whether it be out of

fear or physical incapability (Johnson, 2016). More effects on the juveniles are the

discouragement in the education field. In fact there is a significant population of juveniles that

will drop out of highschool and a significant population of those who would then be incarcerated

as adults (Usher, 2013). Discouragement of relationship building and completion of highschool

from institutions attempting to turn the juveniles away from a life of crime, will not produce an

outcome in which will appeal to the public. Due to the youth who are punished for their crimes

being more likely to continue with the life of crime, punishment while deterring a small

population is not effectively diverting the juveniles from the path of crime. With all of the

complications of the idea of punishment what is left to consider is rehabilitation.

Views on Juvenile Rehabilitation

The remainder of the population believes that a child will learn more about their mistakes

through rehabilitation programs. They believe that punishment is only effective in promoting

short-term behavioral changes and the suppression of negative behavior depending on the details

of the punishment in use. They say that punishment in order to be effective must be predictable

and must be enacted on immediately. It may not be to extreme as it would not obey the Eighth

Amendment of the Constitution. The threat of punishment will not discourage criminal activity,

due to the mentality that the person will not be caught. It will also have no effect on those who
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are not aware of the possible consequences of their actions. Although punishment might not be

presented within the best way, rehabilitation is a method of treatment appealing to the child's

psyche. There has been a rise in the number of rehabilitation programs in late years considering

the advancement in the psychological field, behavior therapy, cognitive-behavioural, and

cognitive approaches (Andrew Day Professor of Psychology; Member of the Strategic Research

Centre for Social and Early Emotional Development, Deakin University, 2017). The programs

most likely meant to discourage participants from criminal behavior.

Among the present day rehabilitation programs, the United States had attempts to focus

on many parts of a juveniles life in order to find the . One aspect is school and a successful

program regarding school is the School-wide Positive Behavioral Interventions and Supports.

This program acts as a prevention strategy aimed at reducing behavior problems that lead to

office discipline referrals and suspensions, and change perceptions of school safety. This

program being effective due to a decrease in school suspensions along with improved perception

of school safety. Another aspect is family, and a successful program for family would be the

Strengthening Families Program. This program is meant to assist with behavioural problems and

improve the skills of the parents within the minor’s life. The last two programs focus more on the

psyche of adolescents. The first program being Promoting Alternative Thinking Strategies,

which assists the individual in developing emotional and social skills, while reducing aggression

pared with behavior problems. Lastly, the Juvenile Breaking the Cycle (JBTC) Program which

through a series of assessments continuously encouraged the youth to not want to be involved

within criminal activity (Andrew Day Professor of Psychology; Member of the Strategic

Research Centre for Social and Early Emotional Development, Deakin University, 2017).
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Rehabilitation was the main focus of the Bridewell Institution; therefore, it can be

assumed that the juvenile justice system has a greater focus on rehabilitation. Many believe that

the rehabilitation can make the difference between the creation of a productive life and falling

victim to criminal patterns. This is based off the belief that rehabilitation completes the job of

detering juveniles away from a life of crime. It is also proven that more people are willing to pay

for rehabilitation due to the fact that it is of a lesser cost, and people can trust rehabilitation to do

its job in discouraging adolescent recidivism.

Punishment v. Rehabilitation

Multiple arguments discouraging punishment revolve around the placement of juveniles

within adult jails. The Bureau of Justice Statistics reported that some 13 percent of juveniles

within prisons were sexually assaulted, and the majority of the assaults came from those caring

for them. The Prison Rape Elimination Act of 2003, states that jails must separate adults and

juveniles which happens most of the time but only at the end of the day, while during the day

juveniles are surrounded by adults. Along with the arguments of the juvenile’s safety, there are

arguments that punishment is not as effective as rehabilitation. McCord mentions a study within

Juvenile Crime, Juvenile Justice a study stating that two thirds of offenders are known to

reoffend after being discharged from prison. In Detroit, Michigan, there was a lawsuit brought

against the Michigan Department of Corrections by multiple offenders claiming that they have

been raped and assaulted by the the adult prisoners and staff at the facility. Each offender being a

juvenile placed within the adult justice system, some due to violent crime and others due to

multiple petty crimes. The case of rape ultimately disobeying the Prison Rape Elimination Act of

2003 ("Juveniles In Prison: Rape, Abuse Claims In Class Action Lawsuit Against The MDOC,"
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2015). As stated earlier in the paper, others do not believe the effects imposed by punishment are

enough to deter adolescents from a life of crime.

A re-educational program in which James Gilligan along with his colleague Bandy Lee

created to work with male offenders in the San Francisco jails was proven to reduce violence

within the jail. Participation within the program was also proven to reduce the probability of the

participants to reoffend after being discharged by 83 percent. “This program saved the taxpayers

$4 for every $1 spent on it, since the lower reincarceration rate saved roughly $30,000 a year per

person.” This experiment proving that rehabilitation is successful in deterring offenders from

crime ("The New York Times Company," n.d.). Another example of a successful rehabilitation

process is that of Derrick Thomas. At the young age of 13 Derrick was involved in the juvenile

justice system for burglary. Then recommended Thomas for the Dade Marine Institute (DMI)

was recommended by a counselor of his, and through the experience he created better social

skills and learned both short and long-term goals. He was then encouraged into attending college

after gaining a football scholarship. After college he was drafted by the Kansas Chiefs into the

NFL. While also creating a foundation “provides social, cultural and educational opportunities

for inner-city kids, including reading programs and summer camps with character-building

activities modeled after some of the activities at DMI”(Keynes, 1999). These two scenarios

proving that rehabilitation is a safer answer.

Proposed Solution

Published reports of the Independent Commission of Youth Crime and Anti-Social

Behavior state that “three fourths of youth offenders released are convicted within a year of

release.” This proves that recidivism is not only reality for many of the juvenile offenders, but it

affects a large portion of the offenders. Reports observing crime rates have noticed that crime is
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not increasing or decreasing immensely so many believe that now would be the time to reform

the system. The main purpose of the reform is prevention, restoration, and interrogation

(MacCord, 2001). Some individuals are shown to need both punishment and rehabilitation in

order to become better, so it is the systems job to find the balance between the two.

A solution would be to eliminate the possibility of a minor being tried as an adult in a

court of law due to the lack of maturity and brain development which helps with decision

making, as stated earlier in the paper. Juveniles should not be sentenced to life in prison either

because if the mental capacity is not present when one commits the crime a severe punishment

that early in life should not be in question. Economically, ethically, and psychological society, as

well as juveniles, can benefit from a combination of punishment and rehabilitation, with the main

focus being put on rehabilitation. Whether the rehabilitation be through programs provided to

youth or admittance into a juvenile detention center, in order for the adolescent to realize the

fault within their actions for a longer period than what would be a result of punishment,

rehabilitation is a necessity. Therefore, in summary, the solution to adolescent recidivism is the

alleviation of strict punishment and the encouragement of rehabilitation processes.

Conclusion

Punishment and rehabilitation are both meant as ways to steer juveniles away from

crime, although they are entirely two separate concepts. One side being the harsher treatment in

hopes of an imprint on a child's brain, and the other to teach the child what they did wrong as

well as how they may not come across the situation again. Children learn more through

rehabilitation due to its effects being long-lasting, while punishment offers a short-term solution

that costs more, but does not ensure the end of recidivism. Taking into account the ethics and
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psychological effects of the different results one might receive for commiting a crime, the

juvenile justice system must be reformed to ensure the decrease in juvenile recidivism.
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