60 years of juvenile justice within a human rights
context: Looking for the ‘balance’
Prof. John Winterdyk
(assistance from Crystal Hincks)
“60 years from the European Convention on Human Rights: Current trends on
human rights”
Dec. 17, 2010
Athens, Greece
Centre for Criminology and Justice Research
Who said it?
• "The children now love luxury; they have bad manners,
contempt for authority; they show disrespect for elders
and love chatter in place of exercise. Children are now
tyrants, not the servants of their households. They no
longer rise when elders enter the room. They
contradict their parents, chatter before company, gobble
up dainties at the table, cross their legs, and tyrannize
their teachers."
Why Compare?
• Provincial benefits:
– insight and understanding of one’s own system(s)
– Acquire ideas/insight for improving one’s own
system(s)
• Universal benefits:
– Youth crime is expanding and becoming
transnational
– To combat 21st Century crime…requires an
international perspective to enable cross-national
collaboration, capacity building
Muncie & Goldson ‘06: developments of any single
nation…require understanding within a regional,
national, and international context – gangs,
smuggling, forced labor, etc.
“stretch our imagination about what might be possible”
Nelken ‘10
• Beyond ethnocentrism – transcend
familiarity as being necessary
• Relativism - it is still foreign and
‘undoable’
Human Rights and rule of law…
“life, liberty, equality and dignity of the individual”
•
•
•
•
•
•
Older adults
Racial, ethnic and religious minorities
Women
Children
People with disabilities
Gays, lesbians, bisexuals and transgendered
people
• Immigrants and refugees
Juveniles- youth at risk… by any other name!?
• Demause ‘78: church and State
– ‘child saving’ movement (Platt ‘64)
• Art. 24 European Charter of Fundamental Rights children’s right
– ‘09 Effective protection…against economic
exploitation and all forms of abuse
– Under 12… under child protection legislation
• ? Age vs. cognitive/emotive maturity
• Yet… most countries like adults – limit liberty as
PRIMARY control option
Human rights and youth: practical consideration
• Age limits:
– Some countries use puberty vs. psychological assessments (Melchiorre
‘04)
•
•
•
•
35
30
25
20
15
10
5
0
BUT…lack of agreement re measure of ‘maturity’
Most countries use age
Variation and inconsistency both within and among countries
! 30 countries minimum age 7 and 4 countries as old as 18
no info
unclear
NO min age
7
8
9
10
11
12
13
14
The Beijing Rules
• Adopted by the United Nations in 1985
• Provides guidance to countries for the
protection of children’s rights
• Outlines the need for specialized
juvenile justice systems
• Function is “to recognize that the
young, owing to their early stage of
human development, require particular
care and assistance with regard to
physical, mental and social
development, and require legal
protection in conditions of peace,
freedom, dignity and security”.
Centre for Criminology and Justice Research
Source: http://www.un.org/documents/ga/res/40/a40r033.htm
The Beijing Rules
Operate within the framework of both the United Nations Guidelines for the Prevention of
Juvenile Delinquency (The Riyadh Guidelines) and the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (the JDL Rules).
All three sets of rules are organized in a three stage process:
RIYADH RULES (1990)
Social policies to be applied to prevent and protect
young people from offending
BEIJING RULES (1985)
Establish a progressive justice system for young
persons in conflict with the law
JDL RULES (1990)
Safeguarding of fundamental rights and
establishing measures for social re-integration of
young people once deprived of their liberty,
whether
in prison or other institutions
Centre for Criminology and Justice
Research
International Agreements
Related to Juvenile Justice
• fully fledged members of society
• same rights to due process as adults
• should be diverted from the formal justice
system
• not be labeled as ‘criminals’
• Minimum standards for juveniles in custody
• Custodial sentences as last resort
• Non-custodial sentences made available
• Capital and corporal punishment should be
abolished… trafficked, smuggled, sexually
exploited
• right to be released from custody unless there are
specific reasons why this should not be granted
• rights to measures to promote recovery and
reintegration
• States are obliged to establish a minimum age of
criminal responsibility
• States should invest in
welfare provisions to
prevent juvenile crimes
Current HR Issues in Europe
“Children in conflict with the law are still children first and do not lose their
human rights, including rights to special treatment and protection, to education
and to health” –European Network of Ombudspersons for Children
• Treatment of migrant children in various
countries
– Economic, social, cultural rights
– In Greece, imprisonment of migrant children
• Reduction of the age of criminal responsibility
• Separation of terms “responsibility and
“criminalisation”
• Development of innovative juvenile justice
systems
– Focus on education, rehabilitation, reintegration
Current HR Issues in Europe
restoration of the community and victims, protection of the public, and development of the
juvenile into a productive citizen
• Appeal for “efficient, fair, and specialized JJS”
• Concerns regarding juvenile institutions
– Abuse, poor conditions, & victimization
•
•
•
•
Training of legal professionals
Ensure policies are child-specific
Integration of restorative processes
Need for comprehensive and
accurate research
for comparisons
Country Profiles
POPULATION
OF YOUTH (1019YRS)
POPULATION
POPULATION
POPULATION
OF YOUTH (1019YRS)
CANADA
33,759,746
4,120,113
USA
310,232,863
42,165,158
GREECE
10,749,943
1,028,708
FRANCE
64,768,389
7,823,934
ITALY
58,090,681
5,457,015
IRELAND
4,622,917
572,911
Canada
7.3%
IRELAND
USA
21.1%
14.0%
ITALY
FRANCE
2.4%
18.3%
GREECE
6.0%
Restorative Justice: The impact on juvenile crime
• “soft justice”
• Process and outcome
• Triangular approach: restoration; accountability; and
community protection
– victims reconciliatory services and family group decision
making processes.
• Social order over social control
• Legislation accommodation (sec. 32 YCJA…extrajudicial
measures)
• “protect, restore, and improve the public safety...provide the
opportunity to bring together affected victims, the community,
and juvenile offenders for restorative purposes.”
Typologies: Pros-Cons
• A country’s youth justice system and HR
compliance influenced by complex
interaction of factors:
– Cultural
– Economical
– geographic
– Historical
– Political
– Religious, etc.
A matter of perspective: selected typologies
• Geographic (Junger-Tas & Decker ‘06)
– Anglo-Saxon orientation (CDN/UK)
– Western continental Europe (Aus/Fr)
• Influence of physical proximity, political linkage,
legal systems, etc.
• Legal models (Friday & Ren ‘06)
– Common-law (India/Nigeria)
– Civil law (Philippines/Turkey)
– Islamic law (SA/Pakistan)
• Political linkages (e.g., colonialism), values, history, etc.
• State based (Reichel ‘08)
– Welfare (Australia)
– Legalistic (Italy)
– Corporatist (Eng & Wales)
– Participatory (China)
• Reflective of formal a set-up
• Complex model (Winterdyk ‘02, ‘08)
Juvenile Justice Models
CANADA
FRANCE
IRELAND
• Proportionality framework- punishment fits the crime
• Hybrid of restorative justice and punitive measures
• Burden placed on community and youth justice committees
• Interventionist model- Treatment & reform instead of guilt &
punishment
• Sparing use of prison- there are only 500-1000 youth
incarcerated at any one time
• Overemphasis on institutionalization of juveniles through
detention and imprisonment
• Less attention on community-based initiatives
• Insufficient research guiding decision makers = concern
Juvenile Justice Models
UNITED
STATES
GREECE
ITALY
• Moral panic based, resulting in over-incarceration
• Excessive transfers from youth to adult court systems, resulting in
juveniles serving time in adult prisons
• *Only one of two nations that has failed to ratify with the UNCRC
• System characterized by principles of education, protection,
support, and integration of the juvenile
• Principles of intervention via non-custodial measures
• Utilization of custodial educational treatment
• “Tolerant” justice system, avoiding formal trials and prison
• “Messa alla prova” – “putting you to the test” most common
program for juveniles
• Only approximately 2000 youth imprisoned annually
Alaska to Alberta
Caution
– Mix will continue!
– ? Compliance with human rights
– Differentiate not along lines of typologies but themes
• Welfare protectionism
• Adulteration
• Repenalization
• Differential justice
• Restoration
• Tolerance
• Decarceration and rights
– How restore what not understand
– Social science and law…”poor dance partners”
Still reflecting
•
•
•
•
•
•
majority of states had incorporated restorative justice language in
legislation, policy, mission or program.
in many of these state documents includes: holding juvenile
offenders accountable for their offense, involving victims and the
community in the justice process, obligating the offender to pay
restitution to the victim and/or a victims’ fund, improving the
juvenile’s ability to live more productively and responsibly in the
community, and securing safer communities.
Harsh sentencing practices
Discriminatory practices
Death penalty
Life w/o parole
SUMMARY
• Need to establish clearer understanding and evidence-based
rationales for themes/models
• Having a voice
– Peer/youth courts
• Inter dependency of democracy
• Complexity of JJS within CJS network…often separate
• Resource capacity
– 3-5% less law/order
• Justice and balanced
Thank you…
• Prof. John Winterdyk
• Director: Centre of Criminology and
Justice Research
• Email: jwinterdyk@mtroyal.ca