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Saturday, January 24, 2015

Ethics of Juvenile Justice

Does either of these cases address the utilitarian view of ethical treatment of convicted murderers?

There are few examples of utilitarian justifications used in these discussions. Most of the argumentation is based upon deontological principals. In the first place, the main issue is based upon the question of mandatory sentencing of juveniles; “One important distinction to recognize is that the ruling is not an outright prohibition on the sentence of life without parole for juvenile offenders; rather, it declares that mandatory life without parole for juvenile offenders is unconstitutional” (Michigan State Senate, Senate Fiscal Agency, 2012, p.1) Because this directly affects the discretion of juvenile courts within the correctional system, it is a question of duty as opposed to a question of consequences. As important, the discussion also focuses on mens rea, or intent. “In 1796 Blackstone explained that lunatics suffered a deficiency in will that rendered them unable to tell right from wrong. It is this lack of free will that prevents a finding of criminal liability” (Phillips & Woodman, 2008, p.467). Mens rea becomes an issue in juvenile justice due to the presumed lack of capacity of agency. This presumption is primarily based on maturity level. “Freeman added that the frontal lobe of the brain, which controls rational thinking and common sense, does not fully develop until someone is in his or her early-20s. This is why people into their late teens tend to engage in risky behavior, such as speeding, he said. “ (Lupkin, 2014, para. 14).
To be honest, I personally engaged in risky behavior until I was in late my late '30s. I used to joke that maturity was not based in wisdom, but rather a lack of energy to do anything...fun.... How sad that my joke has turned into reality. However, lack of maturity is not the only factor. “Characteristics of juveniles that differentiate them from adult offenders (for whom mandatory life without parole sentences are still allowed) include their general lack of maturity, vulnerability to outside pressures (peer pressure), and that their traits are much less fixed, meaning that their actions may not be evidence of unchangeable vile” (Michigan State Senate, Senate Fiscal Agency, 2012, p.2)

What would be the difference between the utilitarian and the deontological philosophies of the two cases reviewed?

My assertion that utilitarian argument is lacking in the direct discussion of these cases does not address the underlying considerations of utilitarianism in the juvenile court system; “...the U.S. Supreme Court in Kent v. U.S .identified constitutionally sanctioned standards, criteria, and procedures governing decisions by the juvenile court to waive its jurisdiction over the offending adolescent. Signs of 'maturity' and 'sophistication' in the crime were important parts of the Kent calculus, signaling to the judge that the young offender posed a danger for further crimes..” (Fagan, 2008, p.82). Fagan continues later, “The recent push to lower the age threshold for treating juvenile offenders as adults assumes that they are sufficiently mature to be held culpable for their crimes, that any deficits in their maturity are minor compared with the harm they have done, and that unless punished harshly, they are likely to offend again.” (2008, p.93). However, the deontological considerations that due process, especially the necessity of mens rea, must play are balanced against the consequences of juvenile justice, and not always successfully; “Justice Kagan stated that the decision to try the offender as an adult is often a false choice because charging someone in the juvenile system may mean he or she can be released on his or her 21st birthday, which may be viewed as too lenient given the magnitude of thec rime of murder.” (Michigan State Senate, Senate Fiscal Agency, 2012, p.2).
One area of intersection between the two philosophies lies in the interest in rehabilitating non-homicidal juveniles (Miller & Jackson not applying). “The development of a separate juvenile court also reflected a fundamental distinction between sanctions based on characteristics of the offender and punishment based on the offense. The parens patriae philosophy emphasized treatment, supervision, and control, rather than the traditional punitive responses of the criminal law” (Fagan & Deschenes, 1990, p.318). Unfortunately, juvenile rehabilitation is as elusive as adult rehabilitation; A New York State Office of Children and Family Services [OFCS] study of recidivism showed that 49% of program participants were re-arrested within 1 year of release, and that 66% were re-arrested within two years of release (2013, p.2) The OFCS study reflects the correctional system at large; “Few modern criminologists or correctional administrators maintain the illusion that incarceration has either broad therapeutic benefits or a strong deterrent effect. Recidivism rates in adult prisons are simply too high—more than two prisoners in three released in 1994 returned to prison within three years—to sustain beliefs in either the rehabilitative or deterrent component of adult corrections” (Fagan, 2008, p.101) This is at a point where utilitarian concepts break from rehabilitative concepts; The rate of youth offending per 100 ages 12-17 dropped from a high of 52 in the early 90's to 6 in 2011 (ChildStats, 2013, Table 1). This is a decline of 88%. One possible explanation for this drop in juvenile crime is that lawmakers in the early 90's embarked upon a series of reforms that changed the approach to juvenile justice. Piquero and Steinberg found that "during the 1990s . . . legislatures across the country enacted statutes under which growing numbers of youths can be prosecuted in criminal courts and sentenced to prison...today, in almost every state, youths who are 13 or 14 years of age (or less) can be tried and punished as adults for a broad range of offenses" (2007, p.1).
Returning to Miller & Jackson after this broader look at juvenile correctional issues we can say the following: there are utilitarian considerations in considering the severity of their crimes and the extant of harm (society at large). These considerations are balanced by duty issues such as adherence to due process of law, and the ability of juvenile courts to use their discretion (often under utilitarian considerations).The utilitarian considerations are also balanced by issues of intent, as the issue of juvenile mens rea is examined. Finally, this becomes more of an emotional consideration in juvenile issues, as Kidder's “right versus right” dilemma of justice versus mercy pills at the mercy strings strongly in juvenile cases.

Hmmm, is parens patriae a utilitarian concept? I was about to assert it was (based on the consequences of children growing up feral being bad for everyone arround), but it sounded weak where I had placed in my discussion. What do yall think?

ChildStats. (2013). Youth perpetrators of serious violent crimes. Retrieved February 11, 2014 from http://www.childstats.gov/americaschildren/beh5.asp

Fagan, J. & Deschenes, E. (1990, Summer), Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders, Journal of Criminal Law and Criminology, Vol.81:Iss.2. Retrieved June 12, 2014 from http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6662&context=jclc

Fagan, J. (2008, Fall). Juvenile crime and criminal justice: Resolving border disputes. The future of children VOL. 18: NO. 2 Retrieved June 12, 2014 from http://files.eric.ed.gov/fulltext/EJ815074.pdf
Lupkins, S. (2014, June 11) Should girls in Slender Man stabbing be tried as adults? ABC News. Retrieved June 12, 2014 from http://abcnews.go.com/Health/girls-slender-man-stabbing-adults/story?id=24095011

Michigan State Senate, Senate Fiscal Agency. (2012, August 16). Juvenile Lifers: Miller v. Alabama and Michigan. Retrieved June 12, 2014 from http://www.senate.michigan.gov/sfa/Departments/DepartmentPublications/CorrJuvenileLifersMemo.pdf

Phillips, J. & Woodman, R. (2008). The insanity of the Mens Rea Model: Due process and the abolition of the insanity defense. Pace Law Review, Volume 28 issue 3. Retrieved June 13, 2014 from http://digitalcommons.pace.edu/plr/vol28/iss3/

Piquero, A. & Steinberg, L. (2007) Rehabilitation versus incarceration of juvenile offenders: Public preferences in four models for change states. Models For Change. Retrieved February 11, 2014 from http://www.macfound.org/media/article_pdfs/WILLINGNESSTOPAYFINAL.PDF

OFCS Fact Sheet: Recidivism among juvenile delinquents and offenders released from residential care in 2008. (2011). New York State Office of Children and Family Services. Retrieved February 11, 2014 from http://www.ocfs.state.ny.us/main/detention_reform/Recidivism%20fact%20sheet.pdf

I think I would have decided for the State;  there can be a problem with ineffective judges (from a utilitarian point of view, over merciful or too lenient) and there can also be cases in which mandatory sentencing statues do not meet the crime proportionally.  This is true in both juvenile and criminal justice.  I see that it is easier to fix an injust law law then it is to identify and fix a "bad" judge.  I also don't see LWOP as an issue of "cruel and unusual" for juveniles after considering the severity of the offense...strange to see that concept has been redefined from the ripping off of limbs originally to how it is adjudicated now.

This can leave a bad taste in the mouth.  For example, I would try the two girls in the "Slender Man" stabbing as adults.  The main point in juvenile justice should be severity of offense, and I base this on the utilitarian concept. I wouldn't feel like a hero of the Republic for that decision, but I think it's the right one  Perhaps a better overall fix would be to assign the juvenile courts the ability to issue severe penalties while still separating the juveniles from the adults; "separate but equally harsh"

I think that parens patraie has been used, but quite capriciously.  For example, I'll toss out the 2008 case in which Texas seized 468 children of a religious sect (the Yearning for Zion ranch, they were a Mormon break-off group).  Even when not abused, the decision of parens patraie is going to be difficult;  you have to balance the rights and the good of the parents, the child, and the State.

The other side of this is when the State fails to assert parens patraie in cases of negelected or abused children.  I won't even look up cases in which the State has lost children, or worse.

In either case, it comes back to the point where we leave theory and enter the world of resources and politics.

I think that there is an emotive/intuitive reaction as far as protecting children, even children that are monsters.    Even younger children then the Slender Man attackers have done vicious things.  The murderers of James Bulger were ten years old.  My main consideration of weighing crime is in the severity of the crime.  Murder is an overwhelming weight, in my opinion ( and attempted murder is pretty close).
So there is a valid "right versus right" argument.  Mercy for monsters with the appearance of children versus justice, and the future protection of society.  That sounds biased against mercy, but I'm not sure I can balance the statement out from my perceptive.
I wonder if tribalism plays a part in this thought process; I'm not big on race or social status as far as I regard people that are "on my team", but people that kill, rape, or steal, regardless of mens rea, are instinctive "others".  I'm not worried about their intent, background, or motivations...I just want them AWAY from me. I think this is where retribution as a factor in criminal justice comes from for many people.

Many of these cases, not only in dealing with juveniles, but in other questions involving mens rea, rest upon the Court's definition of "cruel and unusual punishment".  But isn't punishment "cruel and unusual" to begin with?  The whole point of punishment is inflicting pain in proportion to the offense.  Do you define cruelty at this point as lack of proportionality? And punishment is unusual as well...you aren't punished every day as a matter of schedule (no married jokes here!).  I can see I'm going to have to hit the books here for the Founders' intent and practice, because the definition of what is "cruel and unusual" has certainly changed over the years.


I think that the point at where we measure proportionality is the issue.  If a person is murdered, does the murderer have to die, regardless of mens rea, to meet proportionality?

I do know that confining children with adults is disproportional, considering our society's reluctance to make prison a safe place for prisoners.  I don't think it should be a "painless" place, as "pain" is a function of punishment.  But that "pain" needs to be a measured instrument of the State, not simply more crime committed by other prisoners.

I should have specified this;  the "pain" should be the loss of freedom. Corrections staff should not be beating or otherwise "adding on". 


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