In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his "property" was invaded or that police intruded into a "constitutionally protected area." Petitioner's claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a "legitimate expectation of privacy" that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted: "Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed -- a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers." United States v. New York Tel. Co., 434 U. S. 159, 434 U. S. 167 (1977). Page 442 U. S. 742 Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.

This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U.S. at 389 U. S. 361 -- whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id. at 389 U. S. 351. The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as reasonable,'"

Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In determining whether a particular form of government-initiated electronic surveillance is a "search" within the meaning of the Fourth Amendment, [Footnote 4] our lodestar is Katz v. United States, 389 U. S. 347 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a "search" can occur only when there has been a "physical intrusion" into a "constitutionally protected area," noting that the Fourth Amendment "protects people, not places." Id. at 389 U. S. 351-353. Because the Government's monitoring of Katz' conversation "violated the privacy upon which he justifiably relied while using the telephone booth," the Court held that

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U. S. 745, 401 U. S. 751-752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id. at 401 U. S. 752; Hoffa v. United States, 385 U.S. at 385 U. S. 302; Lopez v. United States, 373 U. S. 427 (1963). [Footnote 4]

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate "expectation of privacy" in their contents. The checks are not confidential communications, but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records Page 425 U. S. 443 to be maintained because they "have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings." 12 U.S.C. § 1829b(a)(1). Cf. Couch v. United States, supra at 409 U. S. 335.

quoting Warden v. Hayden, 387 U. S. 294, 387 U. S. 304 (1967), that "we have . . . departed from the narrow view" that "property interests control the right of the Government to search and seize,'" and that a "search and seizure" become unreasonable when the Government's activities violate "the privacy upon which [a person] justifiably relie[s]." But in Katz, the Court also stressed that "[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." 389 U.S. at 389 U. S. 351. We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate "expectation of privacy" concerning their contents. Cf. Couch v. United States, 409 U. S. 322, 409 U. S. 335 (1973).

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy.

accounts, like "all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party." Id. at 416 U. S. 52.

On their face, the documents subpoenaed here are not respondent's "private papers." Unlike the claimant in Boyd, respondent can assert neither ownership nor possession. Instead, these are the business records of the banks. As we said in California Bankers Assn. v. Shultz, supra at 416 U. S. 48-49,

Hoffa v. United States, 385 U. S. 293, 385 U. S. 301-302 (1966), the Court said that "no interest legitimately protected by the Fourth Amendment" is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into "the security a man relies upon when he places himself or his property within a constitutionally protected area." The Court of Appeals, as noted above, assumed that respondent had the necessary Fourth Amendment interest, pointing to the language in Boyd v. United States, supra at 116 U. S. 622, which describes that Amendment's protection against the "compulsory production of a man's private papers.

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U. S. 610 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U. S. 483 (1964) (night hotel clerk could not validly consent to search of customer's room), but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right, and that the others have assumed the risk that one of their number might permit the common area to be searched.

"that, where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either."

consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared

It has been assumed by the parties and the courts below that the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial. This basic proposition was accepted by the Seventh Circuit in this case, 476 F.2d at 1086, as it had been in prior cases, [Footnote 4] and has generally been applied

The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive Page 389 U. S. 357 means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U. S. 20, 269 U. S. 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U. S. 471, 371 U. S. 481-482. "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U. S. 48, 342 U. S. 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [Footnote 18] -- subject only to a few specifically established and well delineated exceptions. [Footnote 19] It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that arrest. [Footnote 20] Page 389 U. S. 358 Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit." [Footnote 21] And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent. [Footnote 22] The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. [Footnote 23] It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization "bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U. S. 89, 379 U. S. 96. And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment Page 389 U. S. 359 violations "only in the discretion of the police." Id. at 379 U. S. 97.

The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance

Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U. S. 505, 365 U. S. 511. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, [Footnote 10] in a friend's apartment, [Footnote 11] or in a taxicab, [Footnote 12] a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 385 U. S. 210; United States v. Lee, 274 U. S. 559, 274 U. S. 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Davis was not guilty of an unlawful invasion of petitioner's office simply because his apparent willingness to accept a bribe was not real. Compare Wong Sun v. United States, 371 U. S. 471. He was in the office with petitioner's consent, and, while there, he did not violate the privacy of the office by seizing something surreptitiously without petitioner's knowledge. Compare Gouled v. United States, supra. The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. . . ."

Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.

It is obvious that the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin's presence. Partin did not enter the suite by force or by stealth. He was not a surreptitious eavesdropper. Partin was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing.

And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveillance in Silverman

What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile

Senate Bill S1099A 2023-2024 Legislative Session Relates to procedures required for the custodial interrogation of children

Minors are particularly susceptible to self-incrimination and relinquishing legal rights because the prefrontal cortex—the region of the brain responsible for reasoning, planning and considering long-term consequences—does not fully develop until age 25. In exonerated cases where the person was under 18 at the time of the crime, 34% involved a false confession, according to the National Registry of Exonerations. On the other hand, only 10% of exonerated adults falsely confessed. Aligning juvenile policy with the latest developmental science as well as recommendations made by the International Association of Chiefs of Police, some state legislatures are enacting laws that strengthen the due process rights of juveniles during one of the most critical stages of the justice continuum.

When law enforcement officers question a young person in custody, it is called custodial interrogation. In many states, lawyers are not guaranteed for every child during police interrogation, and most states allow children to waive their right to legal counsel—even if they are unclear about what that means. Many young people might not realize they have a right to remain silent and that they might not have to talk to anyone until a parent or attorney arrives. Young people who are intimidated or influenced during a custodial interrogation can face long-term consequences, including being coerced into false confessions or agreeing to a plea that they do not understand.

Several states, including California,28 Illinois,29 Montana,30 New York,31 and Oregon32 nowrequire that certain custodial interrogations of children33 be electronically recorded orpresume that statements made by children during custodial interrogations are inadmissibleif the interrogation is not recorded.• In 2021, Illinois34 and Oregon35 passed bills establishing a presumption that confessionsby children are inadmissible if made as a result of a custodial interrogation in which a lawenforcement officer knowingly used deception

n 2016, New Mexico prohibited confessions or admissions from being used against a childunder age 13 and created a rebuttable presumption that confessions or statements madeby 13- or 14-year-olds are inadmissible.25• Effective as of January 1, 2021, California established a non-waivable right for minors toconsult with legal counsel prior to a custodial interrogation.26• Effective as of January 1, 2017, Illinois law requires that children under the age of 15charged with homicides or sex offenses “must be represented by counsel” during theentirety of their custodial interrogations

nothing to hide,17 and then, under the pressure of a coercive interrogation, may “confess” in orderto end the interrogation, wrongly assuming that other evidence will subsequently demonstratetheir innocence.18 In reality though, confessions often trump other evidence, or shape thesubsequent investigation so evidence that contradicts the confession – including DNA evidencethat excludes the youth or identifies other potential perpetrators – is ignored.19False confessions are entirely too common even among adults. Children, however, areespecially likely to falsely confess. Thirty-six percent of individuals who have been exoneratedfor crimes that they were convicted of while children, and 86% of those exonerated for crimesthat purportedly occurred before they turned 14, had falsely confessed, compared to only10% of those exonerated for crimes they were convicted of as adults. 20 False confessions canalso contribute to ongoing racial disparities that have included the arrest and charging of adisproportionate number of Black children; indeed, a disproportionate percentage of thoseexonerated after falsely confessing are Blac

Miranda rights are a fundamental constitutional guarantee. They are also primarily intended tosafeguard against false confessions, a phenomenon which the Supreme Court has found to be“frighteningly” common, even among adults.15 This is in part due to psychologically coerciveinterrogation practices, such as the use of deception (including both false offers of leniency aswell as the presentation of false evidence), that have been shown to be likely to produce falseconfessions.16 Counterintuitively, innocent individuals may be particularly susceptible to coercivepractices; they are often more likely to waive their Miranda rights because they believe they have

Children also are particularly vulnerable to pressures inherent in an interrogation setting.13 Theprefrontal cortex, the portion of the brain responsible for judgment and decision-making, is notfully developed until the mid-twenties. As a result, in the context of an interrogation, young peopleare less likely to fully consider the long-term implications of confessing to something they did notdo, and more likely to say whatever they think is necessary in order to extricate themselves fromthe interrogation setting and, ideally, go home. They are also especially likely to be influencedby external pressure, having been taught to comply with authority figures, and are more likelyto be intimidated by police officers. Moreover, even when interrogations do not result in a falseconfession, they may still cause or exacerbate trauma, which can have lasting repercussions foryoung people

The brains of young people are still developing in ways that cause them to think and behavedifferently from adults.5 As the U.S. Supreme Court has recognized, these differences areparticularly relevant in the context of an interrogation6: “A lack of maturity and an underdevelopedsense of responsibility are found in youth more often than in adults and are more understandableamong the young. These qualities often result in impetuous and ill-considered actions anddecisions.”7 Likewise, the court has noted that “juveniles are more vulnerable or susceptible tonegative influences and outside pressures....”8Yet law enforcement officers are rarely trained in developmentally appropriate, trauma-informed,and racially equitable approaches to interacting with youth. As a result, law enforcement oftenuse adult-oriented tactics to interrogate youth, including threats, coercion, deceit, and promisesof leniency for cooperation, as well as other strategies which are uniquely powerful when usedwith children. Likewise, officers may fail to recognize youth with literacy issues, mental illness, orcognitive delays, or youth in a state of shock or under the influence. Legal and policy reform is vitalto ensure fair and just outcomes for children and communities.9The consequences of failing to implement safeguards for children are grave. For example, studiesestimate that 90% of children, often without any opportunity to consult parents or an attorney,waive Miranda rights10 – a decision that can have severe, lasting repercussions. Indeed, manychildren do not understand the meaning or import of these protections,11 a natural consequenceof the fact that the typical Miranda warning requires close to a 9th-grade reading level for fullcomprehension

Mandate counsel be provided to youth under 18 before interrogation occurs. Consultation with counsel cannot be waived by youth or their families. Any statement obtained in violation of the above cannot be used against the youth at trial.

Interrogate children without their parents or legal guardians present. Lie to children to persuade them to waive their Miranda rights. Question children without telling the youth or their guardians the reason for the questioning.

Specifically, during its visit to Washington, D.C., the Commission learned thatwhen youth are charged in adult courts, the courts do not mandate orfacilitate the involvement of the children’s parents, because the children aretreated as adults and are therefore considered to be independent andmature individuals not in need of parental guidance and assistance duringthe proceedings. This is in stark contrast to the juvenile system, wherejuvenile courts require the active participation of children’s parents andfamily in every stage, as an essential element of the proceedings

In the case of solitaryconfinement, research might build upon the studies224 that show the short-termimpact of prolonged isolation to show that such practice in fact has enduring

Moreover, given the Court’srecognition of juveniles’ developmental immaturity, it seems to have rejectedretribution and deterrence as supportable penological aims. As Justice Kennedyexplained in Roper (and quickly summarized and dismissed in Graham),220juveniles’ reduced culpability eliminates the justification of any extremeretribution.221 Furthermore, given the infrequency with which juveniles performany cost-benefit analysis, extreme practice carries no deterrent impact.222 Assuch, the Court seems most focused on assessing whether a given practiceserves any valid incapacitative or rehabilitative purpose. Research effortsshould therefore focus on why certain incarceration conditions fail to bothincapacitate and rehabilitate juveniles and why, even if a given practice doesincapacitate youths (as in the case of solitary confinement or physical restraint),it does so at the expense of their future rehabilitation.223

Though further, more robust longitudinal research is required, thesestudies’ findings mirror results of more general research on child maltreatmentand development: maltreatment and neglect inspire “isolation, fear, and aninability to trust” that can translate to “lifelong psychological consequences,including low self-esteem, depression, and relationship difficulties.”70 Thetraumas children experience are also linked to physical illness later in life,including heart disease, diabetes, obesity, and sexually transmitted diseases, aswell as worsened occupational health and job performance.71 Incarceratedyouths’ isolation only augments the impact of maltreatment because they lackthe human connections that encourage positive attachment and self-esteem,undermining their ability to cope with the traumas they experience.7

o incarceration, abuse during incarceration was a significant predictor ofposttraumatic stress disorder (PTSD) and depressive symptoms.66 The morefrequently a youth experienced abuse during incarceration, the more likely heor she was to suffer PTSD and depression.67 A 2012 study indicated increasedlikelihood of substance abuse as well as other mood disorders;68 the study alsosuggested that, while such conditions might decrease as time passed, formerlyincarcerated youths were more likely to experience persistent mental healthissues.6

Youths housed in adult facilities arethirty-six times more likely to commit suicide in adult jail than they are injuvenile detention facilities.63

Young people thus face a difficult choice: fend forthemselves in the general population or seek “protection,” usually in the formof solitary confinement.60 Furthermore, adult facilities are not equipped toprovide necessary education and rehabilitative programs for youths. In fact,forty percent of adult jails provide no educational services at all.61 Nor canadult facilities easily accommodate the unique nutritional, medical, and dentalneeds of young persons.62

Youths housed in adult facilities fare worse. Relative to their peers injuvenile facilities, young persons in adult jails are five times more likely to besexually assaulted and fifty percent more likely to be attacked with a weapon.57They are twice as likely to be beaten by staff,58 who are not trained to engagewith youths and thus frequently view age as an aggravating rather thanmitigating factor.59

at as many as two thirds of detained youth may possess mental disorders—with rates of depression among incarcerated juveniles at four and a half timesthe national average,54 and rates of attempted suicide at two to four times thenational average55—makes them all the more vulnerable to traumatic situationsand inadequate mental health care

In 2012, twenty-one percent of juvenilefacilities were at or over standard capacity,49 limiting youths’ access to mentalhealth and medical resources, undermining adequate provision of programmingand education services, and increasing the risk of violence and suicidalbehavior rates.50 Nearly ten percent of youths in juvenile facilities were victimsof sexual assault.51 Twenty-two percent of facilities employed solitaryconfinement as punishment.52 Fourteen juveniles died while in custody,including two who were murdered and five who committed suicide.

n 2015, 4,493 minors were confined in adult prisons andjails,43 and the number of admissions each year relative to the numberincarcerated on any given day may be ten or twenty times as high

Despite the best efforts of 1800s reformers to create distinct facilities toprotect youths from the dangers of adult incarceration, the separation has notendured. A rise in violent crime in the 1980s and 1990s spurred a rash of lawsby which states could attempt to sentence juveniles as adults, resulting inincreases in arrests, length of incarceration, and the transfer of youths to theadult criminal justice system.41 Adolescent confinements spiked at roughly14,000 in 1997.42

Juvenile Justice and Delinquency Prevention’s census in 2013, there werenearly 20,000 youth in detention centers and 35,000 confined in correctionalfacilities or other residential programs.39 The number of juvenile admissionseach year relative to the number incarcerated on any given day is likely five tosix times as high.4

Despite the deplorable conditions of juvenile detention facilities today,reformers in the nineteenth century created juvenile detention facilities withlaudable motives. In 1825, a group of Quakers founded New York’s House ofRefuge30 to prevent the perceived corruptive influence of adult criminals onimmature, innocent youth.31 Prior to that, adult criminals and young personswere imprisoned in the same facilities.32 In 1855, Chicago opened its ChicagoReform School,33 forty years before Illinois passed the Juvenile Court Act of1899, which established the first juvenile court in the United States.34 Withintwenty years, thirty jurisdictions followed Illinois’ lead, re-establishing thestate not as an adversary to juvenile delinquents but, pursuant to its parenspatriae power, as a benevolent intervener.35Today, all fifty states and the District of Columbia have juvenile courtsystems36 and corresponding specialized detention centers,37 training schools,and youth centers to “treat” delinquent youth.

The practices that characterize juvenile confinement compromisechildren’s rehabilitative prospects, making them more likely to recidivate,22undermining their prospects for finishing school,23 and exacerbating mentalillness24 that may even result in suicide.

taken to a psychiatric ward, where he spent two weeks.11 A year later, he washospitalized again.12 Though he returned to school following his lastconfinement, Kalief continued to exhibit signs of paranoia, anxiety, anddepression.13 According to his family, Kalief “ultimately was unable toovercome his own pain and torment which emanated from his experiences insolitary confinement.”14Kalief Browder’s story publicizes the “hell on Earth”15 many incarceratedadolescents live each day.16 And while Kalief’s story ended in a particularlytragic way, he is but one of thousands of youths17 permanently changed by theirtraumatic experiences in confinement. For example, at a detention center inNampa, Idaho, a nurse forced a boy to seek release on fabricated home visits,during which time she took him to her house, where she drugged him beforesexually assaulting him.18 Sixteen-year-old, 5’ 2” Rodney Hulin was anallyraped within three days of his arrival at the Clemens Prison, an adult facility inBrazoria County, Texas; he was nonetheless returned to the same unit threedays later.19 After guards rejected repeated pleas for help, Rodney was finallyremoved to solitary confinement for protective purposes, where he attempted tohang himself.20 He died in a prison hospital bed after spending four months on

These beliefs led to welfare models of a separate court for children being developed in both countries around 1900. Eventually,questions regarding the effectiveness of these courts and concerns for the treatment of juveniles coming into these courts andtheir ‘rehabilitation’ programs led to the introduction of due process rights into the juvenile courts. The welfare model of juvenilejustice began to evolve into a justice model in both countries. In more recent history, concerns about juvenile crime and theeffectiveness of the juvenile courts drove legislation and policy in both countries to embrace a more punitive, or get-tough,approach with juveniles. Currently, it seems that both countries are grappling with what comes next. There appears to be a slightshift from the punitive approach to juvenile crime. Time, crime rates, and public sentiment will determine the next major shiftin juvenile justice philosophy for both countrie

n 2003, Canada passed the Youth Criminal Justice Act (YCJA). The YCJA called for a reduction in the use of institutions,increased reintegration of youth into the community (International Cooperation Group, 2004) and the replacement of transferringyouth into the juvenile system by offering adult sentences in juvenile court (John Howard Society of Alberta, 1999). In additionthe YCJA stressed juvenile accountability, meaningful consequences for inappropriate actions, and reduction of disparity seenin the juvenile court (John Howard Society of Alberta, 1999)

1984, because of an increase in juvenilecrime, the YOA was passed (Zalkind & Simon, 2004) and juvenile offenders received many due process rights. The act alsostressed accountability and public protection, more treatment for youth, and sentencing that fit the crime. The YOA set the*243 age jurisdiction of the juvenile court at ages 12 through 17, inclusive (Bertrand, Arnold, & Hornick 2002)

By 1965, a federal document entitled “Juvenile Delinquencyin Canada” recommended due process rights for juveniles. The report opened the door to discussion, debate and potentialcompromise about what a juvenile justice system should do (International Cooperation Group, 2004). By 1970 the YoungOffenders Act (YOA) recommended adoption of the 1965 report. It was not adopted. I

s a result of the child saving movement, the Juvenile Delinquents Act (JDA) was passed in 1908 (John Howard Societyof Alberta, 1999). The JDA created a separate system of justice for juveniles. The JDA emphasized the welfare model andrelied on the doctrine of parens patriae (International Cooperation Group, 2004). As in the American system, the proceedingswere informal and due process rights were virtually non-existent

. Canadians addressedthe issues of housing juveniles in adult jails and prisons the same way as reformers in the US did -- by recommending creationof houses of refuge and developing reformatories throughout the mid to late 1880s (International Cooperation Group, 2004).In 1893, the government instituted a separate court system for juveniles based on the premise of parens patriae (Zalkind &Simon, 2004). In 1894, the Act Respecting Arrest, Trial and Imprisonment of Youthful Offenders was passed by Parliament(International Cooperation Group, 2004). This law applied to all juveniles who committed crimes under age 16, focusedon reformation, not punishment, mandated separation from adults during incarceration and stressed privacy during trials(International Cooperation Group, 2004)

. However, this movement was short-lived as by the early 1980s, avery conservative approach to juvenile crime began to sweep the nation. The get-tough approach to delinquent juveniles hasresulted in a philosophical shift from rehabilitation and due process to deterrence and punishment. The juvenile justice systemexperienced a renewed reliance on juvenile facilities and increased transfer to the adult system, and engaged in open debateabout the use of the death penalty for juvenile offenders.

bout the conditions of confinement in juvenile correctional facilities led to congressional involvement in the juvenile justicesystem. A series of congressional hearings resulted in the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974.The JJDPA, among other things, called for decreased reliance on juvenile correctional facilities, the removal of children fromadult jails and status offenders from juvenile facilities. The JJDPA resulted in the creation of many community based anddiversion programs in juvenile justice (Bilchik, 1999

The belief that the court wouldalways act in the best interest of the child, however, began to be questioned in the 1960s, and as a result, due process rightswere introduced into juvenile justice (Bilchik, 1999).*242 The Supreme Court held in 1967, that juveniles should hold basic rights in an adjudication hearing that could resultin their loss of liberty (del Carmen et al, 1998). Cases soon followed which raised the burden of proof in juvenile courts andchanged the process of juvenile justice as these rights were introduced (del Carmen et al, 1998)

n the early United States, adolescents over the age of seven could be regarded the same as adults with no different criminalsanctions than those experienced by adults. Social reformers of the early 1800s were concerned about this, and began to workto develop some different practices for youth who committed crime. In 1825, the first separate juvenile institution in the UnitedStates was opened -- the New York House of Refuge (Krisberg & Austin, 1993). Within twenty-two years, this concept ofan institutional approach to juvenile misbehaving was expanded, with government intervention, into the reform school model(Krisberg, 2005). However, persistent problems with this model led reformers to call for the creation of the first juvenile court(del Carmen, Parker, & Reddington, 1998).In 1899, in Chicago, Illinois, the first juvenile court opened. The court handled all troubled children under age 16. The purposeof the court was to rehabilitate and change behavior, but not to punish. The court was based on the doctrine of parens patriae,where the state The court stepped in as a kind, but stern parent to raise children who acts as a guardian to protect the interestsof children, who were failed by their natural parents. To this end, all court proceedings were informal and juveniles held noconstitutional rights. This was, in essence, a welfare system and not a legal court (Snyder, 2002). The belief that the court wouldalways act in the best interest of the child, however, began to be questioned in the 1960s, and as a result, due process rightswere introduced into juvenile justice (Bilchik, 1999)

An examination of the development of the juvenile justice systems in the United States and in Canada demonstrates a parallelhistory. The shared belief that juveniles were more capable of rehabilitation than, and just plain “different” from adults led tothe creation of separate court systems in both countries around the turn of the 19th century. In both countries, the initial juvenilecourt was in essence, a welfare system, concerned more with the best interest of the child and treatment issues as opposedto legal issues such as due process rights. Eventually, both countries extended due process rights to juveniles years after thejuvenile court system were created. And, finally, during the 1980s and 1990s, both the United States and Canada went througha “get-tough” approach to juvenile crime, which resulted in significant changes to the process of juvenile justice

In the United States, it seems far more dependent on the state and/or the people involved in developing alternative programs.While there have been some legislative mandates, they have not been comprehensive throughout the states. Some states haveprovided for the financial development of restorative justice programs, while others have no programs at all

ecause of its statutory framework, the criminal code and juvenile code in Canada are federal. Therefore, changes that occurhappen on the level of a national perspective. The United States, on the other hand, has a less uniform approach. State by *193state, programs differ. While Canada still differs in approach by province, there is still a much more unified approach withinits legal structure.It is fair to conclude that the legislative framework in Canada provides for greater availability of restorative justice. Thedetermination that aboriginal people need to be provided for in a culturally sensitive way and the strong base of native practicesin restorative justice, lend themselves to utilization in Canada. Indeed, the fact that at every level of the criminal justice systemthere are legislative mandates for restorative justice supports the growth of its policies (Latimer & Kleinknecht, 2000)

While in the United States there is not a federal police agency that compares to the Royal Canadian Mounted Police, through theDepartment of Justice there is the Office of Community Oriented Policing. This office funds police departments throughout thecountry to provide community-oriented policing. It also funds training through its network of Regional Community PolicingInstitutes and monographs that it publishes (COPS Website). In 1999, it published Community Policing, Community Justice,and Restorative Justice. This publication laid a framework for restorative justice to be integrated into the growing utilization ofcommunity policing (Nicholl, 1999). In fact, the federal statutes mentioned above which include restorative justice, all relatedto school resource officers, are funded through the COPS Office.There are individual police departments within the United States, which have used restorative practices in their policing. In 1999,nine police departments were identified as ones which had developed policies for police actively being involved in restorativejustice (Nicholl, 1999). One of these, in Woodbury, Minnesota, started its program in 1995 (Umbreit & Fercello, 1997). Basedon the Walla Walla program in Australia, the Community Restorative Conferencing program has met much success. Today atleast 50% of all juvenile cases in Woodbury are resolved through these conferences (Hines, Bazemore, 2003)

ermont has developed an extensive system of community reparation boards. Statutes allow for the funding of these (13V.S.A. Sec. 7030 and 28 V.S.A. Sec. 2a, 28). In fact, Vermont has led the way in promoting the use of the community as part ofthe restorative justice process by utilizing these community panels (Karp, Bazemore, & Chesire, 2004; Boyes-Watson, 2004).Other states have utilized these laws to set up victim offender mediation programs for the use of victims and violent offenders.Texas has one of the largest programs for violent offenders in the country. It was established to provide for the needs of victimsto meet with the person who harmed them or a loved one (Umbreit, 2003).However, many of these states simply allow for the funding or the optional implementation of practices. In fact, this lack ofa comprehensive legislative framework has been cited as a reason that the United States is behind much of the rest of thedemocracies. Some support the idea that in order to create the practice of restorative justice in all states, there first needs tobe a legislative framework (Bazemore & Griffiths, 2003). Others in the United States feel that it must be a grass-roots effort,which is then supported by legislation (Pranis, 1998).The reality in the United States is that many programs have been developed without statutory authority. In Missouri, whileno restorative justice language is found in the juvenile code, many courts throughout the state have implemented programs.Utilizing the authority of the juvenile court, judges and/or juvenile officers have chosen to have restorative justice programs.Promoting this has been the state's determination that Title II money available from the Office of Juvenile Justice andDelinquency Prevention, Department of Justice, which passes through the Missouri Department of Public Safety, should beused for restorative justice and other innovative practices (Katz & Rempe, 2004). In addition, OJJDP Challenge Grant moneyhas been used to subsidize state-wide restorative justice research and training for juvenile court personnel (Katz, 2000)

hile in Canada, there are very specific avenues for restorative justice practice, in the United States there are varied approaches.Many states have implemented some aspect of restorative justice in their juvenile codes (e.g. A.C.A. Sec. 9-301-401 (AR)and ARCS Sec. 13.40.070 (Washington state). Of the twenty-nine programs, twenty-two are for juvenile offenders (Umbreit,Lightfoot, & Fier, 2001). Other states have only focused on the adult system (see Sec. 217.777 R.S.Mo. (Missouri) and Tex.Code Crim. (Texas). Seven states provide for adult programs and not juvenile (Umbriet, Lightfoot, & Fier, 2001). Indeed, somestates have focused only on awarding grants to non-profits for this purpose (See NY CLS Jud Sec. 849-a-g (NY) and K.S.A.Sec. 38-1635 (K

he United States legal framework is much different from Canada. While there is federal criminal law, only specific crimesfall under federal jurisdiction. When looking for federal statutes which contain the word “restorative justice,” only four federallaws are available. They all relate to the work of school resource officers and list restorative justice as a possible intervention(USCA, 2005).The states, however, have implemented much restorative justice. As of 2001, twenty-nine states had implemented restorativejustice within this statutory framework. These statutes relate to many applications of restorative justice. While only nineteenstates have actually used the words “restorative justice” in their language, at least twenty-nine states have actually authorizedsome aspect of it (Umbreit, Lightfoot, & Fier, 200

auses, to respond to the needs of young persons, and to provide guidance and support to those at risk ofcommitting crimes ...”;.*191 “WHEREAS Canadian society should have a youth criminal justice system that comments respect,takes into account the interests of victims, fosters responsibility and ensures accountability through meaningfulconsequences and effective rehabilitation and reintegration, and that reserves its most serious intervention forthe most serious crimes and reduces the over-reliance on incarceration for non-violent young persons ...” (YouthCriminal Justice Act, Preamble).At Section 4 in the Youth Criminal Justice Act, juveniles are allowed the opportunity for non-court types of interventions ifthese extrajudicial measures “are adequate to hold a young person accountable for his or her offending behavior ...” (YouthCriminal Justice Act, Sec. 4). This section allows for the use of restorative justice in juvenile matters (Barnhorst, 2004). TheAct specifically allows for conferences. It goes on to mandate conferences for juveniles. (YCJA, Sec. 19) This section has beenused to implement family group conferencing, using the Wagga Wagga model with police (Chatterjee & Elliott, 2003). It hasalso been used for other restorative justice interventions. However, the fact that these conferences are “advisory” have left somepractitioners wondering if courts will allow the decisions reached in them to stand (Hilliam, Retisma-Street, & Hackler, 2004).The Youth Criminal Justice Act is still young, and its affect on the use of restorative justice in Canada is still unknown. However,early case law has shown the courts to mandate that non-judicial options be utilized whenever appropriate, as stated in the Act'sDeclaration of Principles (Barnhorst, 2004).In Canada, the federal criminal statutes are written for all of the provinces, while the applications lie within the frameworkdecided in each province. How this will play out with the Youth Criminal Justice Act will be up to the provincial administrators,and the culture that already exists (Hillian, Reisma-Street, & Hackler, 2004). However, throughout the nation, the law for thetreatment of all crime is consistent

The Youth Criminal Justice Act of 2002 was enacted because of two issues surrounding juvenile crime. First, the legislative actwas designed to make it easier to treat minors who committed serious crimes as adults. The second goal was to reduce the useof courts and incarceration for young offenders who commit less serious crimes (Bala & Anand, 2004).While never using the language of restorative justice, the act clearly states its goal of crime prevention, rehabilitation and therestorative principles of victim interests and offender accountability. It states in its preamble:“WHEREAS communities, families, parents and others concerned with the development of young persons should,through multi-disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying

n 1997, the Royal Canadian Mounted Police adopted a policy which gave the police the discretion to utilize restorative justice.Based on family group conferences used in Australia and New Zealand, the RCMP developed guidelines for community justiceforums (Chatterjee & Elliott, 2003). These forums, designed after the Wagga Wagga model and piloted by a police officer inAustralia, were developed utilizing Braithwaite's concept of “reintegrative shaming” (O'Connell, 1993).In these forums, the offender, victim and their families or supporters all meet together with a trained facilitator, who is often apolice officer. During these forums, victims have an opportunity to tell the offender about the impact of the crime on them, askthe offender questions about the crime, and discuss issues of restitution. The offender can take responsibility for the harm thatwas done, and is given the opportunity to make things right (Community, Contract and Aboriginal Policing, RCMP Website).The unique character of these conferences is the opportunity for police to decide to refer cases directly to these conferences,rather than the court system. An example is the Nanaimo Community Justice Forum in Nanaimo, British Columbia, administeredby the Royal Canadian Mounted Police (RCMP) (Mirsky, 2005). Beginning in 1996, RCMP officers choose cases which areappropriate for restorative justice. Over a four year period, 125 officers referred cases to restorative justice. Officers receivetraining in community justice forums at the RCMP Academy in Regina. Both juvenile and adult offenders are referred tothese conferences. Between 1999 and 2005, 6,000 participants participated in the Nanaimo program, a 6% recidivism rate wasreported, and 97% of the offenders complied with their agreements (Mirsky, 2005).The RCMP also trains others to facilitate these forums. By the end of 1998, the RCMP had trained 1,700 individuals to conductcommunity justice forums. These facilitators handled over 30 different types of offenses. Data collected from 487 participantsfound them overwhelmingly a fair and satisfying way to handle the issue (Chatterjee & Elliott, 2003)

Code Sec. 718.2 (e). The Court held that when dealing with aboriginal offenders, the circumstances of their lives, i.e., poverty anddiscrimination, must be considered in sentencing. The Court continued that a different analysis for aboriginal people includingthe factors that had to be used, and different forms of sentencing had to be developed. The Court also mandated that restorativejustice be considered as part of the sentence in aboriginal cases, (Gladue, 1999). In R. v. Wells (2000) the Court reaffirmedGladue and held that restorative justice must be considered in imposing a sentence on an aboriginal defendant,While this part of the criminal code is focused on sentencing, with the offender being the focus, the Correctional Service ofCanada has also established a Victim Offender Mediation Program for violent offenders. In this program, victims or victim*190 families of those murder ed are allowed to meet with a remorseful offender, have their questions answered, and venttheir emotions directly to the perpetrator. Citing the need for victims to heal from “traumatic criminal offences,” a programoperated through the Fraser Region Community Justice Initiatives Association in Langley, British Columbia, is discussed onthe Canadian Corrections website (Correctional Service Canada, 2005). The Canadian Ministry of Justice has supported thisfor many years (Umbreit, Bradshaw, & Coates, 1999)

These two sections have given rise to several cases which have continued to redefine the role of the courts in mandatingrestorative justice. The frequently cited case, R. v. Gladue (1999) involved an aboriginal woman who was found guilty of astabbing, While the Canadian Supreme Court did not accept her appeal, it further defined the meaning of Canadian Criminal

ithin the Canadian society, this sensitivity to native people is very unique. There is a long history of the battle foraboriginal rights, especially around treaty rights. In 1982, section 35 was added to the Canadian constitution, which recognized“existing aboriginal and treaty rights of aboriginal peoples” (Canadian Constitution, Section 35). (For more information onthe development of legal rights of the native people of Canada, see Sanders 1990; Tester, McNicoll, & Forsyth 1999; Bell,1998; and Murphy, 2001). While not addressing special rights within the criminal justice system, with this new constitutionalprovision came changes throughout the Canadian culture.Restorative justice promotes the ideas of the aboriginal people, such as healing, forgiveness and active community involvement.In R. v. Gladue (1999) the Canadian Supreme Court held that the courts have an obligation to consider all of the issues regardingaboriginal peoples, such as poverty, and consider the sanctions appropriate given their aboriginal heritage. The Court recognizedthat restorative justice reflected more the community justice of the aboriginal people, and a more appropriate punishment(Restorative Justice in Canada, 2000)

This statute lays the framework for restorative justice in all adult sentencing. The Canadian Supreme Court, in case law, hasacknowledged that this part of the code can include restorative justice (Proulx, 2000; Wells, 2000). However, the dichotomyof this paragraph, which mixes traditional punishment with restorative alternatives, remains an issue within the Canadian legalsystem (Roach, 2000).Indeed, this section of the Criminal Code expands in Sec. 718.2, where it instructs the court to take into consideration manyaspects of the crime, i.e., aggravating and mitigating circumstances, when sentencing. However in subsection (e), a significantconsideration is added:718.2 A court that imposes a sentence shall also take into consideration the following principles:(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be consideredfor all offenders, with particular attention to the circumstances of aboriginal offenders. (Canada Criminal CodeSec. 718.2, emphasis added

(d) to assist in rehabilitating offenders;*189 (e) to provide reparations from harm done to victims or to the community; and(f) to promote a sense of responsibility in offenders, and acknowledgment for the harm done to victims and to thecommunity. (Canada Criminal Code Sec. 718, emphasis added.)

The Criminal Code of Canada includes Sec. 718, which states:The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for thelaw and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or moreof the following objectives:(a) to denounce unlawful conduct;(b) to deter the offender and other persons form committing offences;(c) to separate offenders from society, where necessary;

anadian criminal law has a different structure than the United States. Canadian criminal law is federal, and its administrationis provincial. While the United States system has federal criminal laws, they are only relevant to a small group of crimes. Forexample, crimes occurring on federal land are covered by the federal code, as well as moving between states in the commissionof the crime. However, most of the criminal law in the United States is state law. By having a centralized source of law inCanada, the ability to mandate system-wide changes in their criminal justice system is more available on a national basis

he native or aboriginal roots of restorative justice are much more apparent in the Canadian system. Many of the processeswhich are used in programs have their first appearances within native people. New Zealand has structured its juvenile systemon restorative based processes from its Maori culture. In North America, both native communities from Canada and the UnitedStates have influenced the development of restorative practices. And, as discussed below, restorative justice in Canada maywell best serve the native populations with their criminal justice problems (Meyer, 1998)

The United States adopted the first two in many places,and Canada adopted others, i.e., community panels, however the involvement of police in family group conferencing is muchless developed than in Canada

estorative justice practices have grown from two influences in North American culture. In Canada, the one-on-one model ofvictim-offender dialogue grew out of the Mennonite tradition. The circle processes were reflected in the native or aboriginal*188 people. However within Canada, an Australian/New Zealand practice of police participating in family group conferencing

Restorative justice is a shift in the approach of the traditional criminal justice system. In the traditional system, the offender'scriminal actions violate the state and its laws. The focus is on establishing the guilt of the offender, and administeringpunishment. Justice is defined within the framework of the adversarial system, where one wins and one loses (Zehr, 1995).The restorative model differs because of the emphasis on the broken relationships that crime creates, and not the emphasis onthe violation of the state. In restorative justice the focus is on identifying the needs and obligations of the parties and makingthings right between them. The victim and offender are allowed to meet, and collaboratively agree on the way the harm thatthe crime caused can be repaired (Zehr, 1995).The restorative justice view acknowledges that crime harms more than victims. It harms all members of the community. Whenexamined from the community perspective, a restorative response to crime means that relationships are rebuilt (Bazemore,1998). If crime is a response to disharmony in the community, a community response offers the opportunity for local behavioralstandards to be imposed. In addition, creative solutions, which are usually lacking in court imposed sanctions, are possible.The community involvement in the process of restorative justice, in and of itself, is an important component in solving socialproblems (Bazemore, 1998).Restorative justice is a philosophy. There are many processes which reflect the “restorative principles” or the pillars of restorativejustice, and are included under the umbrella of restorative Justice (Zehr, 2002). Victim/Offender dialogue (sometimes referredto as Victim/Offender mediation) allows the parties the opportunity to speak to one another in a safe environment, utilizingthe facilitation skills of a trained mediator. In the process, the offender apologizes for the harm, the victim is allowed to havequestions answered, and together they work out a plan for the offender to repair the harm. Circles have been used for communitysentencing, and other types of expanded processes which include the victim, offender and the community who has experiencedthe harm. Family group conferencing involves family members of the offender, and offers the opportunity for the family unitto assist in repairing the harm (Zehr, 2002)

he beginning of restorative justice in the United States was also the use of victim-offender mediation. Earlyprograms were referred to as VORP (Victim/Offender Reconciliation Program). The first U. S. program was started in 1978,housed in Elkhart, Indiana, and was a joint effort of the Mennonite Central Committee and PACT (Prisoner and CommunityTogether). It was modeled on the Canadian victim offender dialogue program in Ontario (Umbreit, 1995)

Canada was the birthplace of restorative justice in North America, where the first program was developed in Kirchener, Ontario,Canada in 1974. The Mennonite Church sponsored this first face-to-face meeting between victim and offender, and emphasizedthe purpose of the dialogue was to gain understanding and reconciliation between the parties (Bonta, Wallace-Capretta, &Rooney, 1998). T

side from the increase in police force size, only one title of the Bill provides for crime prevention. Some would argue thatthe provisions that ban certain types of weapons is a form of crime prevention, but others would disagree. Almost $11 billionis provided for state and local law enforcement, and $2.6 billion for federal law enforcement.The Bill calls for only $6 billion for prevention programs. This is a much smaller amount than the original $7.6 billion.Unfortunately, in order for the Bill to pass the U.S. House of Representatives, a large shift of funds from prevention to prisonswas required.126 The prevention programs include grants for summer and after-school education and recreation programs;mentoring, tutoring and other programs involving participation by adult role models; programs assisting and promotingemployability and job placement; and prevention and treatment programs to reduce substance abuse, child abuse, and adolescentpregnancy, including out-reach programs for at-risk families. Also included are programs such as entrepreneurship, culturaland health programs, social activities, arts and crafts programs, dance programs, nutrition services, parental training programs,family counselling, and other programs for community development to benefit low-income communities, midnight sportsleagues, gang prevention, and drug-use prevention.While the Bill allots $6 billion for these programs, this funding is spread out over a six-year period. With over fourteen millionyoung people living in poverty, and thus at the highest-risk, the $1 billion per year comes out to only about $71.43 per at-riskyouth per year. That is not much of an investment considering the staggering annual cost of incarcerating only one of thoseyouths -- $35,000.The overall goals of the Crime Bill are to get tough with criminals and to prevent crime, mainly through deterrence. TheBill definitely gets tough with hard-core violent criminals, especially adult offenders and violent juvenile offenders who aretransferred to criminal court. In addition, deterrence appears to receive high priority, although deterrence has yet to be provensubstantially effective. By comparison, however, the prevention programs appear to be of low priority

or had one serious drug felony conviction and one serious violent felony conviction as stated above.120 The so called “truthin sentencing” provisions provide for federal grants to a state if it has increased the percentage of convicted violent offenders,has increased the average sentence which is served by violent offenders, and has statutorily provided that offenders with one ormore prior convictions for violent crimes will not serve less than 85% of their sentence.The Bill also extends the penalties for several offenses. These offenses include manslaughter, civil rights violations, traffickingin counterfeit goods and services, conspiracy to commit murder for hire, arson, and drug trafficking near public housing.121The Bill creates over sixty new federal crimes for which the death penalty may be imposed.122 Those listed which would mostlikely affect juveniles include death resulting from a drive-by shooting or carjacking; gun murder during a violent crime ordrug trafficking offense; murder by an escaped federal prisoner; murder of a state correctional officer by a prisoner; murderby a federal prisoner serving a life sentence; murder for hire; murder of court officials or jurors in order to obstruct justice;and retaliatory murders of witnesses, victims or informants.123 Those crimes related to drug trafficking carry the death penaltyeven when the drug trafficker is not directly involved with the specific death.Almost $10 billion is being spent to build and expand prisons.124 Approximately $150 million is being spent to ensure thepunishment of young offenders “who might otherwise be sentenced to probation, shock incarceration, reimbursement ofvictims, or weekend incarceration

he Crime Bill calls for certainty of punishment for young offenders, and prosecution as adults for certain crimes in federalcourt. The Bill also provides for violent offender sentencing (the “three strikes” provision) and truth-in-sentencing. In addition,the Bill increases the penalties for many crimes, establishes mandatory life sentences, and extends the death penalty to a largenumber of offenses. Virtually each section provides for a state to receive a federal grant if it strengthens the length, severity,and certainty of punishment.The “certain punishment for young offenders” section provides for grants to states that develop methods of punishmentwhich “ensure certain punishment for young offenders and promote reduced recidivism, crime prevention, and assistanceto victims, particularly for young offenders who can be punished more effectively in an environment other than a traditionalcorrectional facility.”119 While this provision does not promote incarceration in adult prisons, it does nothing to promoteprevention programs as a viable alternative. As discussed previously, the Bill provides for youth as young as thirteen to betried as adults in criminal court for violent offenses such as murder, rape, robbery, and assault. In addition, the Bill provides forincreased penalties for gang-related crimes, such as crimes involving firearms and drugs.The “three strikes” provision would mandate life imprisonment for a conviction of a federal violent felony provided that thedefendant had either two prior convictions of violent state or federal offenses that each had a potential sentence of ten years

The Crime Bill does little to increase rehabilitation efforts and resources. Those rehabilitative efforts which are provided focuson the non-violent offenders. One provision, called a “safety valve” would allow a judge to use discretion to waive mandatoryminimum penalties for first-time, nonviolent offenders. The offender must not have used threats of violence, a firearm, oranother dangerous weapon in connection with the offense. In addition, the offense must not have resulted in death or seriousbodily injury to any person, and the offender must not have been an organizer or leader in the offense. Lastly, the offender musttruthfully provide all information and evidence concerning the offense to the Government.117 The “education requirement forearly release” provision requires that an inmate be making satisfactory progress towards a high-school diploma or equivalentdegree for the credit towards service of sentence to be effective

he current system of punishment is not working. Likewise, rehabilitation efforts have not proven to be effectively reliable.The answer is to prevent the crime before the first offense is committed. It costs about $35,000 per year to incarcerate a *142youth.98 It would cost much less to educate him or her, or even to establish counselling programs and community activitiesdesigned to deter juveniles from committing their first crime. In addition, putting juveniles in prison instead of attemptingto keep them out may result in their being released in worse condition than when they entered. By avoiding the first crime,society not only saves resources by not incarcerating the youth, but also gains from the contributions that the individual willmake throughout his or her life

Because of the lack of faith in the current preventative systems, much funding and support are being cut from programs thatnurture children and intervene to keep kids out of trouble. As a result, issues that could or should have been resolved earlier areending up in juvenile or criminal court.97 These prevention programs, however, have not been given enough time to becomeeffective. Considering that prevention programs were not seriously considered until the 1960s, errors in the beginning areinevitable. It was not until recently that the predictive factors for juvenile offending were discovered. The identification of thesefactors will enable social scientists to develop preventative programs designed specifically to counter-balance the problem.What is needed is more research to determine which programs have a positive effect. The first thirty years of preventionprograms showed that individualized programs do not work, but community-based programs are more promising. The differenceis that the individualized programs did not take into account the overwhelming influence that community, educational, andfamilial surroundings can have on a youth. These programs need more community involvement such as recreational programs,positive police interaction, and better education. Prevention programs need to be the primary source of intervention withtroubled teens, not the court

ids need to be held accountable, but not by punishing them by putting them in a brutal dehumanizing institutionfor six to eight months, where they continually learn to survive by intimidating other people, where they loserespect for authority, which, in turn, increases the odds that when they are released from that institution they aregoing to engage in similar or worse criminal activity.93More and longer incarceration does not appear to be working. As the incarceration rate has gone up, so has the percentage ofjuveniles rearrested for crimes after their release.94 These juveniles come out of the institutions in worse condition than whenthey entered because they are coming out embittered and hardened.A majority of the juveniles sent to prison or other institutions are suitable for an alternative sanction. “Many non-violentoffenders are incarcerated instead of participating in community-based programs, which cost less and allow convicted criminalsto provide restitution to victims.”95 Additionally, those who are incarcerated receive very little treatment and often return ina worse state that when they entered.Alternative sanctions include “intensive supervised probation, house arrest, mandatory treatment programs, communitycorrections, boot camp, and residential placement

Prevention programs are proactive efforts aimed at reducing delinquent acts prior to their commission. Studies have uncovereda list of predictors for juvenile offending which can aid officials in identifying “at-risk” youth prior to the commission oftheir first criminal act. The predictors of juvenile offending include (1) early troublesome, dishonest, aggressive, or antisocialbehavior, (2) poor parental guidance and stability, (3) criminal parents and siblings, (4) broken homes and early separations, (5)social deprivation stemming from a low economic level, and (6) school failure resulting from low intelligence, or achievementand absenteeism.91 Thus, there appears to be a correlation between juvenile delinquency and factors such as poverty, physicaland emotional abuse, neglect, family dysfunction, and educational deficiencies.92The most promising prevention programs involve the entire family or community. Some of these programs include familyand substance-abuse counselling. Others include after-school programs and midnight sports leagues to help raise the juveniles'self-esteem and keep them off the streets. Another emphasis is on educational and job placement programs that will enable thejuveniles to feel a sense of worth and give them hope for a better life

The Crime Bill proposes $6 billion for new prevention programs, including job training, school improvement, and after-schoolprograms.88 However, this figure is much less than originally requested and many social service and juvenile officials are upsetbecause of the Bill's heavy preference for punishment over prevention.89 An official stated that “[i]t's going to be more *141costly in the long run, and it really doesn't begin to address the problem of kids who grow up in violence and will become violent,and kids who are victims and will become victimizers.”90 While there are undoubtably juveniles who are mature enough to besentenced as adults, there are others who are only confused and who are not the habitual criminals that the system was set upto weed out and punish. For these individuals, the solution is prevention programs that will focus on their specific needs andproblems and will “straighten them out” before a crime is committed, thus eliminating the need for court involvement

By 1991, the United States had surpassed the former Soviet Union and South Africa as having the largest prison populationin the world.”85 Although more people have been sentenced to prison, it does not appear that it has actually reduced crime.86This is shown by the higher murder rate in states with the death penalty than in those without it.87 One can only assume thatthe same is true for other crime and punishment. What needs to be addressed is the root causes of crime and the social contextthat encourages it. The new Crime Bill fails to adequately address these issues

There is a growing section of society, however, that believes effective prevention programs are the only way to lower crimerates. Recent legislative attempts reveal that at least some government officials agree. Legislatures are realizing that it makesmore sense to invest in programs that reach at-risk youth before they commit their first crime than to spend millions of dollarsto build new prisons.83 As stated by one congressman opposed to the Crime Bill:Much of the crime bill places too little emphasis on prevention and too much on putting people in prison. Insteadof spending money on prisons and prisoners, we should be spending more money on schools and job training.Providing adequate educational and job opportunities is a far better approach to reducing crime, and it is far lesscostly to society.

owever, fewer than twenty years later, prevention theorieshave lost their appeal. Many citizens are calling for decreased federal spending on prevention programs and for increasedpunishment of juvenile offenders, including trial and treatment as adults

It was not until the 1960s that proactive preventio

There is also evidence that incarceration may in fact result in the production of more frequent and serious offenders.80 Theproblem might be reduced if one could determine which offenders were likely to commit serious, repeat offenses. That way,the risk of one-time offenders becoming embittered through incarceration could be avoided. The adult custodial experienceprovides the young offenders an opportunity to learn the “art” of violence and advanced criminal behavior from experts whohave made it their live

here is evidence that trying juveniles in criminal court does not result in harsher punishment, but may actually result in nopunishment. When juveniles are tried in adult court, they have the right to a jury trial. There is evidence that it is easier toconvict a juvenile appearing before a judge in juvenile court than it is to convict him before a jury in a criminal proceeding.79One reason is that juries are reluctant to sentence a youth as harshly as they would an adult, especially if the youth would besentenced to an adult prison

The explanations for the failure of punishment to deter are fairly straightforward. First, the advantages of crime are greatbecause society's moral and ethical limits on punishment do not allow for punishment that fits the crime.77 Punishmentin our society is not an eye-for-an-eye because society wants to preserve civility, something that criminals do not care about.Second, the recidivists calculate their gains and losses over many criminal actions, the majority for which they are not caughtand punished.78 Therefore, the price that they pay when they are caught is greatly outweighed by the profits they have gained

“Just desserts” sentencing involves the theory that criminals should be punished harshly and that they deserve the punishmentthey receive. This theory has a strong retributive foundation and punishes according to past behavior, not on the basis of whothe offender is or may become. To be most effective, the sanction must be given and carried out as quickly as possible after thecrime, and it must logically flow from the crime committed.72 It must also be certain, severe, and constant.73The sentences that most delinquents now receive in both state and federal systems are based on the idea of “just desserts” ratherthan the child's “best interests.” Supporters of “just desserts” sentencing argue that the sanctions given in juvenile court areinappropriate for the seriousness of the crime and are ineffective as general and specific deterrents. Proponents of the juvenilesystem argue that violent juvenile crime is a transitory behavior pattern, which will subside as the juvenile becomes moremature and is unlikely to escalate to more serious or persistent crime.74 Thus, proponents argue severe punishment would bewasted because the juvenile is unlikely to continue committing offenses even without punishment. A gap in the punishmentoccurs when juveniles make the transition to criminal court because they are not irresponsible children one day and responsibleadults the next.75 “Because prior records cumulate, criminal courts sentence older offenders more severely when their rate ofcriminal activity is declining and sentence younger offenders more leniently even though they are at the peak of their criminalcareers.”7

t the heart of the debate is whether juveniles understand what they are doing when they commit these violent crimes. Thereis an argument that punishment has no permanent effects because after the punishment has stopped, the suppressed behaviorreappears.69 This is especially true if the behavior is very rewarding when it is not punished. The threat of punishment isenough to deter the majority of the public. Studies have shown that most criminals are only one-time offenders.70 When wevisualize a criminal, the person we see is the recidivist, who is only a small percentage of those committing crimes.71 Therecidivist has been proven to be insensitive to punishment, as *140 illustrated by his continuing to commit crimes oncereleased from priso

Studies on the effectiveness of deterrence indicate that, generally, crime rates go down as the certainty and severity ofpunishment rise.67 These studies, however, are only based on reported crimes, and the findings can usually be attributed toother factors such as the level or type of crime, the level of police involvement, and societal tolerance.68 As a consequence,researchers are fairly certain that deterrents are effective. The problem is that they do not know which ones are effective, thelevel to which they must be stressed, which crimes they deter, the extent to which they deter, or at what cost to society thisdeterrence occurs

uring the past decade, at least one quarter of thestates have redefined the purpose of their juvenile courts.65 “These amendments de-emphasize rehabilitation and the child's,‘best interests' and emphasize the importance of protecting public safety, enforcing children's obligations to society, applyingsanctions consistent with the seriousness of the offense, and rendering appropriate punishment to offenders.”66 These changesin purpose signal a basic philosophical reorientation.

hree specific criticisms of the juvenile court system have been identified. First, the sanctions in juvenile court are thought to beless certain and severe, creating a leniency gap in punishment and retribution. Second, the high rates of violent juvenile crimelead to the belief that the rehabilitative philosophy of the juvenile system is ineffective in curtailing future crime and violence.Finally, the shorter sentences in juvenile court are thought to pose greater risks to the community.62 Rehabilitation has notbeen shown to have any predictably beneficial effect.63 The perceived weakness of the rehabilitative system has promptedlegislatures to adopt more punitive strategies which increase the length and severity of sanctions for violent juvenile offenders

hallenges to rehabilitation began with the rapid increase in juvenile crime rates in the 1970s. Serious and violent juvenilecrime rose steadily from 1974-79, and again in 1980-81.59 In 1991, juvenile homicides, forcible rapes, robberies, andaggravated assaults reached their highest levels in the nation's history.60 Critics of the juvenile system linked these increasesto the ineffectiveness of rehabilitative programs

Rehabilitation is the result of plannedintervention that reduces the offender's future criminal activity.58 There is always a delicate balance between the need to fosterthe healthy development of the juvenile and the obligation to protect the community.

he number of juvenile court cases involving serious offenses such as murder and aggravated assault grew 68% from 1988to 1992.54 A study showed that homicides increased by 55%, robberies went up by 52%, forcible rape increased by 27%, andaggravated assault cases increased by 80%.55 The same study showed an increased willingness by society to prosecute youngpeople, especially in criminal court. These cases were transferred to adult court more readily based on the seriousness of theoffense, the juvenile's record, and the juvenile's amenability to treatment. This is a punitive approach.56 While there is stillsupport for the rehabilitation and prevention philosophy, particularly from social and behavioral psychologists who nevermade the shift to a more punitive approach, the overwhelming public opinion and outcry for more punishment will make theestablishment of and commitment to prevention programs difficult.

It is time to refocus sentencing and treatment on the offender and not the offense. The realization of the role that poverty,unemployment, hopelessness, poor health care, and limited education plays in juvenile crime must be accepted. In manyinstances, the “three hots and a cot” that prisons provide is better than what the youth are receiving on the outside.*139 ... The conditions of life [in the slums], economic and social, conspire to make crime not only easy toengage in but easy to invent justification for .... The slums, with all their squalor and turbulence, have moreand more become ghettos, neighborhoods in which racial minorities are sequestered with little chance of escape.People who, though declared by law to be equal, are prevented by society from improving their circumstances... are people with extraordinary strains on their respect for the law and society

Currently, the “best interests” of the child are often not considered during sentencing. There is an increasing trend to viewthe juvenile offender as a willful perpetrator rather than as a victim of societal influences and hardships.49 The focus is nolonger exclusively on the offender, but instead on the severity of the alleged offense, the sophistication and maturity of thechild, the prior offense record of the child, any indications of responsiveness to prior rehabilitative efforts, and the availabilityof alternatives to the juvenile court.50 The sentencing philosophy has shifted from treatment to punishment. Treatmentfocuses on the mental health, status, and personal characteristics of the individual rather than on the commission of prohibitedacts.51 Punishment, by contrast, assumes that responsible actors who make voluntary prohibited choices deserve to suffer theunpleasant consequences

Unfortunately, while the juvenile justice system may have been on the right track in believing that social influences played arole in juvenile crime, the juvenile justice system's response to delinquency was found to be disproportionate to the severity ofthe offense. As one policeman stated, “[t] he law says a kid should be treated differently because he can be rehabilitated, butthey weren't robbing, killing and raping when kiddie court was established. Kids are different now, but the law hasn't caughtup with the changes.”48 The feeling is that courts have a responsibility not only to serve the welfare of the child, but also toprotect society.

Rehabilitation was the plilosophy of the juvenile court system for approximately 150 years. Originally, the juvenile was seenas a child, someone who was an unwilling victim of influences beyond his control. Thus, it was believed that the purpose ofthe juvenile justice system was to rescue these children from the evil influences in their surroundings and prevent them fromcommitting further crimes. The purpose was not to punish but to assist in the individual's rehabilitation and protection fromsociety. In essence, the juvenile justice system existed to protect the “best interest” of the child.The juvenile's conduct was often seen as the natural result of causes beyond his control and required helpful interventionrather than punishment. A common-held perception was that teens are more vulnerable and less self-disciplined than adults.Thus, while the crimes committed by juveniles may be just as harmful as those committed by adults, juveniles deserve lesspunishment because they have “less capacity to control [their] conduct and to think in long-range terms than adults.”45Criminal acts were seldom thought to be the juvenile's fault alone. Families, schools, and communities were believedresponsible for socializing young people. Society shared some blame for their offenses. Juveniles were also thought to bemore susceptible to peer group influences. The Supreme Court suggested that juveniles were less culpable than adults becausethey were less mature and responsible than adults, and lacked the experience and judgment of adults.46 The Court held that“[i]nexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or herconduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.

Judicial waiver focuses on the individual and involves transferring a juvenile to criminal court only on a discretionary basisfollowing a hearing to determine if the juvenile is amenable to treatment or a threat to public safety.39 The specific factorsand substantive criteria that a juvenile court may consider were stated in a non-binding memorandum by the Supreme Court inUnited States v. Kent.40 These factors include the seriousness of the offense, the manner in which the offense was committed,whether the offense was against a person or property, the likelihood of an indictment, the desirability of adjudication in onecourt if juveniles and adults are involved, the maturity of the juvenile, the juvenile's prior criminal history, and the prospectof rehabilitation of the juvenile and protection of the public.41Legislative offense exclusion focuses on the offense and provides that any youth charged with certain specified offenses arenot within the jurisdiction of the juvenile court.42 Many courts have determined that transfer to criminal court is justifiedwhen the maximum punishment available in juvenile court is clearly inadequate. In addition, many states now use determinatesentencing and guidelines mandating minimum terms of placement in secure care.43 Because of the ease of transfer to criminalcourt, those who reach the age of sixteen have effectively become adults despite statutory language that defines eighteen asthe beginning of adulthood.

y the mid-1970s, arrests of persons under eighteen had increased by 144% while arrests of persons over eighteen increased byonly 12.9%.34 As a result, society began calling for a “get tough on crime” stance. Support for rehabilitative and preventativesystems quickly gave way to more punitive theories. Many states lowered the minimum age for trial in criminal court for seriouscrimes and redefined the circumstances under which a juvenile could be transferred to adult criminal court.35The shift in juvenile treatment philosophy from rehabilitation to punishment, combined with recent public sentiment andconcern over the rising juvenile crime rate has facilitated the transfer of juvenile offenders to criminal court for trial as adults.The prosecution of juveniles in adult courts is one of the most extreme responses to serious juvenile crime. Many states nowallow a judge to order juveniles to criminal court (“judicial waiver”) and have statutory guidelines to facilitate such transfers(“legislative offense exclusion”).36 Between 1978 and 1982, *138 juvenile codes were amended in half of the state legislaturesin order to simplify and expedite the transfer of juveniles to criminal court for trial as adults.37 In addition, some states haveamended their juvenile codes to the effect of a more punitive approach. Some states use legislative offense exclusion to removejuveniles charged with capital crimes from the juvenile system.38 Others exclude longer lists of offenses such as rape orarmed robbery. These statutes reflect legislative distrust of judicial discretion in sentencing juveniles and signal a shift fromthe individualized treatment philosophy in the juvenile courts to a more retributive one

hearings were similar to adult criminal proceedings and, therefore, juveniles were entitled to the same safeguards as adults.29Thus, until the Court's decision in Gault, juvenile proceedings were formally considered non-adversarial because the court wasserving the interests of society as well as the child's best interests.30However, by giving children the same constitutional safeguards and procedural rights as adults, the Court in In re Gault provideda philosophical basis from which to argue for a more punitive juvenile system.31 A common sentiment was that “[i]f childrenare enough like adults to warrant the same rights, are they not also like adults in knowing the difference between right andwrong?”32 There was concern that “the Court was moving in a direction that would have the effect of eliminating most if not allof the distinctions between juvenile and adult courts and, consequently, that the objective of the juvenile justice system wouldbecome the pursuit of retributive justice within a fully adversarial system.

The creation of a separate juvenile court was based on the concept of parens patriae, which is the idea that the state providesfor wayward or troubled children if the parents fail to maintain their welfare.23 Because the children had not received adequateparental guidance, they were not seen as solely responsible for their own conduct. Delinquency was thought to be an outgrowthof poverty and immorality, thus the purpose of the court was to rehabilitate the youth through social and psychological services.“Houses of Refuge” were the first public facilities established exclusively for juveniles, and were intended to remove childrenfrom adult prisons.24 They were based on the premise that children were not miniature adults, but that they required differenttreatment including educational and vocational training.25 These “Houses of Refuge” focused only on reactive remedieshowever, and did nothing to prevent delinquency.The first juvenile court was established in Illinois in 1899.26 This system was designed to protect the state's right to use parenspatriae for official intervention in the juvenile's life, especially if the youth was neglected. At that time, children were seenas vulnerable, innocent, passive, and dependent beings who needed help in preparing for life.27 By 1912, only two states werewithout juvenile justice systems which addressed not only criminality, but also poverty.28 These courts were designed forprotection and not for punishment. In a landmark decision, the U.S. Supreme Court in In re Gault held that juvenile delinquen

The early criminal justice system provided no separate adjudication for juveniles accused of crimes. Only the common law'sinfancy defense allowed deferential treatment for some juveniles under the age of fourteen.21 As a result, most juveniles weretried as adults and sentenced to adult prisons. Nineteenth century reformers found two major problems with the system. First,the incarceration of juveniles with adults only further educated the youth in the ways of crime. Second, because of the harshnessof the adult penalties, many juries were reluctant to convict a juvenile.22

A 1991 national survey of public attitudes regarding juveniles being tried in adult courts reveals that most Americans believethat juveniles should be tried as adults for violent crimes.16 This study was performed by the Survey Research Center of theInstitute for Social Research at the University of Michigan (Ann Arbor). “The overwhelming majority of survey respondents(82%) believed that the amount of serious juvenile crime increased in their respective states during the last three years.”17Seventy-three percent of respondents believed that the primary purpose of the juvenile system should be to treat and rehabilitatewhile only 12% thought punishment should be the main purpose.18 Overall, however, a substantial portion of respondents feltthat juveniles accused of serious crimes should be tried as adults and not sent to the juvenile system for rehabilitation. Asthe seriousness of the offense increased, the proportion of respondents who favored trying juveniles in adult courts and *137sentencing them to adult prisons increased.19 The survey also noted that as the fear of becoming a victim of violent crimeincreased, so did support for trying juveniles in adult courts and for incarcerating them in adult prisons.20An unavoidable question is whether public opinion should guide legislation regarding juvenile crime and punishment. Somewould argue that society does not have all of the facts and that experts in the area of behavioral psychology and sociology arebetter equipped to advise Congress on the best method of curtailing juvenile violence. While this may be true, almost everyonewould agree that public views are important and should be considered when critical public policy issues are involved.

Society is beginning to view children as less innocent and more capable of distinguishing right from wrong. As the legalemphasis shifts from protecting and reforming the child to protecting society, children are also being viewed as less likely tobe rehabilitated. This societal view is influenced by the media accounts of “kids-who-kill.” As a result, many people are tiredof discussing rehabilitation; they want action. Juveniles who repeatedly commit violent offenses are receiving the messagethat they can get away with these serious crimes because they are young and will receive a short sentence, if any at all. Inthis regard, the current system does not work. Instead, it fosters the abuse of young kids by older ones. Many gang memberssimply recruit younger members to transport guns and drugs, and to commit drive-by shootings because of the almost absolutecertainty that the younger child will not be seriously prosecuted.

Young children who commit adult crimes such as assault, rape, armed robbery, and murder, are often tried in the same courtsas teenage shoplifters, burglars, and petty drug offenders12 and receive sentences which bear no relation to the crime theycommitted. In many instances, even when convicted of first-degree murder, the teens are back on the streets in fewer thaneight years,13 and there is no public record of their violence. Representative Charles Schumer (D.N.Y.), a member of theHouse Judiciary Committee, stated in an interview that “[t]he public is anguished about crime. They are telling legislators: ‘Dosomething!”’14 That “something” is tougher penalties for juvenile offenders. A recent poll revealed that approximately 73% ofAmericans believe that juveniles who commit violent crimes should be punished as adults.

It is often difficult to speculate on the reasoning for congressional legislation, especially in the absence of lengthy floordiscussions and commentary. One can safely assume, however, that public opinion plays a significant role in guiding newlegislation. Recent television news polls show that up to 70% of viewers have changed their daily routine as a result of increasedcrime.10 Over the last decade, the number of juveniles committing murder, rape, robbery, and assault have increased by 93%.11The surge in gang-related crime has led many to focus on the juveniles in gangs -- children as young as eleven -- who routinelycarry guns, sell drugs, and are involved in violence. Many people feel that our youth are out of control and it is time for societyto regain control. Society is demanding a reduction in the amount of violent crime, particularly violent juvenile crime

Two titles in the Crime Bill, Title XIV - Youth Violence and Title XV - Criminal Street Gangs, include sections which providefor the adult prosecution of juvenile offenders. Title XIV provides that juveniles committing murder or attempted murder aftertheir thirteenth birthday may be charged as adults. In addition, transfer to adult court may be authorized if a juvenile possessesa firearm during the commission of a violent felony. Title XV provides, in part:In considering the nature of the offense, as required by this paragraph, the court shall consider the extent to whichthe juvenile played a leadership role in an organization, or otherwise influenced other persons to take part incriminal activities, involving the use or distribution of controlled substances or firearms. Such a factor, if foundto exist, shall weigh in favor or a transfer to adult status, but the absence of this factor shall not preclude sucha transfe

nited States Code, and make a factual determination, on the record, for each factor. These factors include the age and socialbackground of the juvenile; the nature of the offense; the extent and nature of the juvenile's criminal or delinquency record; thejuvenile's intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile's responseto such efforts; and the availability of programs designed to treat the juvenile's behavioral problems

n August 21 and 25, 1994, the House and the Senate passed the Crime Bill. Two provisions included in the Bill provide foradult prosecution of juvenile offenders. The new provisions allow juveniles to be tried as adults for all violent crimes which fallunder federal jurisdiction and for crimes involving firearms or drug trafficking.7 The provisions, however, do not automaticallytransfer the juvenile for adult prosecution. The court must still apply the balancing factors set forth in Section 5032 of title 18

In response to growing public concern over juvenile crime and violence, the final version of the Violent Crime Control andLaw Enforcement Act of 1994 (Crime Bill) included two provisions to crack down on juvenile crime. The first provisionallows juveniles as young as thirteen to be tried as adults for violent crimes such as robbery, rape, attempted murder, andmurder.5 The second provision provides for adult prosecution of serious juvenile offenders involved in criminal street gangs.6Whether longer and stiffer prison sentences have any real effect on recidivism, particularly with respect to juveniles is an age-old question. The passage of the Crime Bill and its juvenile crime provisions again brings this issue to the forefront

At one extreme lies the system bestdescribed by the concept of parens patriae, a doctrine which emphasizes “helping” the child and intervening in his or her bestinterest because the parents are unable to provide adequate guidance. At the other extreme lies the more formal, legalistic systemwhich focuses not on the offender, but on the offense committed, punishment for present crimes, and past criminal history

n eleven-year-old boy with twelve prior felonies shoots a fourteen-year-old girl in cold blood.1 Two young boys, ages ten andeleven, drop a five-year-old boy out of a fourteen-story window because the young child would not steal candy for them.2 Storieslike these are becoming all too familiar in our society. Crimes of murder, rape, robbery, and assault committed by childrenhave increased by 93% over the last decade.3 As a result, the public is realizing that juvenile crime is a serious problem thatis not going away, and in all likelihood is getting worse. Forty percent of Americans are highly fearful that they will becomevictims of violent crimes

JJDPA funds are administered by a central federal agency, the Office of Juvenile Justice and Delinquency Prevention(OJJDP),48 *53 which also offers technical assistance in planning and developing programs.49 Each participating state50administers its block grant, calculated on a population basis, through a local government body vested with the power to monitorand enforce the provisions of the JJDPA and assisted by a state juvenile justice advisory committee.51 The state planningagency (SPA) must send to OJJDP annual plans and information demonstrating progress toward full compliance with the Act'srequirements.

The Act further assumes that children should remain with their families or in their communities whenever possible.45 Itprohibits the bolstering of existing large institutions with JJDPA funds,46 and requires that each participating state demonstrate“substantial,” or seventy-five percent, compliance with the Act's deinstitutionalization requirement.47 This requirementencourages the development of programs through which status offenders can be gradually transferred from secure institutionsto less restrictive settings closer to their home communities.

The JJDPA was designed to help states develop approaches to these problems by funding a wide range of community-basedalternatives to institutions for children. Underlying the Act is the assumption that institutional confinement is neither appropriatenor necessary for the successful treatment of status offenders. Supporters of the Act also argued that local community programswould be more cost-efficient than large institutions, and could be better tailored to the unique needs of each community's youthpopulation.43 Moreover, the legislative history of the Act reveals particular congressional concern with the danger to statusoffenders of confinement with juvenile delinquents

In the view of these reformers, juvenile justice systems had adopted policies and practices contrary to their original rehabilitativegoals. For example, prior to any hearing on the allegations against them, children charged with status offenses or minordelinquent acts were often confined in secure detention facilities,39 including adult jails. While denying them the proceduraldue process protections of the adult criminal justice system,40 this widespread practice subjected children to the psychologicalas well as physical dangers and deprivations of such institutions. Furthermore, the development of large state institutions forjuvenile offenders encouraged reliance on incarceration rather than on treatment to deal with the problems of troubled youth.41Such institutions housed large numbers of children who posed no threat to community safety, but for whom appropriate serviceswere not available.

The JJDPA was the product of extensive research and debate by a Senate subcommittee.37 The Act reflected the growingconviction of youth workers, mental health professionals, corrections personnel, *51 and legal advocates that most statejuvenile justice systems needed extensive reform. Those systems were overburdened and institutionally unable to deal withthe problems of all types of children, ranging from abused runaways to juvenile delinquents

The JJDPA is designed to correct widespread abuses and deficiencies in state juvenile justice systems. States that elect toparticipate in the program may receive funding for projects consistent with the three major objectives of the Act: the removalof status offenders from secure detention, the separation of juveniles from adult offenders in jails or other facilities, andthe provision of essential due process protections to children in the juvenile justice system.36 States that fail to demonstratesubstantial compliance with the requirements of the Act become ineligible for continued funding

The status offender is a statutory creation, who occupies a unique position in the juvenile justice system. In contrast to theneglected, dependent or abused child, the status offender comes within the jurisdiction of the juvenile court because of hisor her behavior, rather than on a finding of improper parental care or guidance. Unlike children charged with or found guiltyof delinquency, alleged or adjudicated status offenders have not committed acts which would be considered criminal if doneby an adult. When status offenders are incarcerated, therefore, it is not for any violation of the penal code, but for behaviorwhich is considered unacceptable solely because of their age.

tatus offenders are children who come within juvenile court jurisdiction for noncriminal behavior. Although they have notcommitted crimes—acts for which adults could be arrested and confined—status offenders are taken into custody and held insecure facilities in every state. Moreover, they are often detained longer than children charged with crimes

In recent years, the incarceration of status offenders has been challenged by attorneys and criticized by analysts of thejuvenile justice system. In response to this and other national juvenile justice problems, the Juvenile Justice and DelinquencyPrevention Act (JJDPA),1 was enacted in 1974. In general, the Act requires that states which accept JJDPA funds demonstrateprogress toward removing *42 status offenders from secure facilities and developing alternative, non-secure programs andservices to meet these children's needs

If an adult sentence is imposed, s. 76 of the YCJA creates a presump-tion that a young person who is under 18 years of age at the time ofreceiving the adult sentence will be placed in a youth custody facility,with provisions for transfer to an adult facility when she or he reachesthe age of 18. However, the sentencing court may order that a youngperson under the age of 18 and subject to an adult sentence be placedin an adult facility if this is in the ‘‘best interests’’ of the young personor necessary to ensure ‘‘the safety of others.’’ If a person who was ayouth at the time of the offence receives a life sentence for murder,there will be eligibility for parole at an earlier date than for an adult,reflecting the limited accountability of even those youth convicted ofthe most serious offences

Court of Canada resolved the controversy, ruling in R. v. D.B. that it isa violation of the ‘‘principles of fundamental justice’’ and of s. 7 of theCanadian Charter of Rights and Freedoms to have presumptiveoffences. The Court accepted that it is a principle of fundamentaljustice that young people be entitled to a presumption of diminishedmoral blameworthiness or culpability flowing from the fact that,because of their age, they have heightened vulnerability, are lessmature, and have a reduced capacity for moral judgement. The pre-sumption of an adult sentence in s. 72(2) is inconsistent with the prin-ciple of fundamental justice that young people are entitled to apresumption of diminished moral culpability. The Court made clearthat the Charter does not preclude imposing an adult sentence on ayoung person, as the seriousness of the offence and the threat tosociety posed by the youth may require an adult sentence (see e.g.,R. v. A.O.). However, the Charter requires that the Crown alwaysjustify imposing an adult sentence on a youth

While much of the YCJA is intended to reduce the use of courts andcustody for less serious young offenders, the YCJA also included pro-visions to facilitate sentencing of the most serious young offenders asadults (Bala 2006). The YCJA changed the process from that under theYOA, by abolishing the pre-adjudication transfer hearing that couldresult in a trial in adult court and adult sentencing. The YCJA providesthat the decision as to whether to impose an adult sentence is to bemade at a post-adjudication hearing, just prior to sentencing, with thecourt having full awareness of the circumstances of the offence andoffender. This allows for a more expeditious and fairer process fordeciding whether to impose an adult sentence

The proportion of sentenced cases receiving a custodial dispositiondropped from 27% in 2002/2003 to 22% in 2003/2004 – a drop ofjust under one fifth in one year. It decreased by a further 5.4% overthe following three years, with the result that, in 2006/2007, only16.6% of sentenced youth court cases resulted in a custodial sentence.This drop in the proportion of sentenced cases receiving a custodialsentence is interesting. The reduction in the numbers of youth chargedby police (Figure 1) and referred to court (Figure 4) was – consistentwith the provisions of the YCJA – concentrated in less serious offences(Carrington and Schulenberg 2005; 2006a; 2006b; 2008). Therefore, thecases reaching court were, on average, more serious and would beexpected to be more likely to receive custodial sentences. The observedreduction in the proportion of custodial sentences is strong evidencefor the effectiveness of the provisions of the YCJA that restrict the useof custodial sentences.

The YCJA also introduced the sentence of intensive rehabilitative custodyand supervision order (IRCS). The IRCS order allows a court to confine ayouth to a mental health facility or to approve an individual plan thatincludes confinement and treatment, though it does not allow forinvoluntary medical treatment (e.g., drug therapy). This sentencemay only be imposed on a juvenile offender who has committedone of a small number of very serious offences and who is sufferingfrom a psychological disorder. As a result of the statutory restrictionson their use, very few of these orders are made. Only 16 of these orderswere recorded by Statistics Canada in the first four years of the YCJA,although the data are unavailable for some province

Under the YCJA, all custodial sentences are composed of custodial andcommunity phases; for all but the most serious offences, the first twothirds of the sentence is served in custody and the last third undersupervision in the community. For the most serious offences, there isjudicial discretion about how to divide the sentence between custodyand community supervision, and for all custodial sentences, there isthe possibility of judicial review to allow early release or continueddetention after the presumptive release date. Further, for all but thelongest sentences, a period of supervision under probation may followthe completion of the sentence of custody and supervision.Figure 6: Deferred custody and supervision orders as a proportion of allsentenced cases in youth court by region, 2003/2004^2006/20078.04.1 4.28.63.44.15.79.62.23.83.24.56.72.03.4 3.55.7AtlanticPercent of all sentenced cases2003/04 2004/05 2005/06 2006/07Quebec Ontario Alberta British Columbia150 Canadian Journal of Criminology and Criminal Justice April 2009

There is substantial variation across Canada inprovincial policies and in local attitudes and community programs,but the introduction of the YCJA was accompanied by transitionalfederal government funding to encourage the establishment of morecommunity-based programs for responding to youth offending

alternatives to charging. This indicator declined gently from 1991 to2002. In 2003 it dropped substantially from 56.4% to 44.6% charged: arelative change of 21% in one year.

While the YCJA encourages police and prosecutors to make greateruse of diversionary programs, it also makes it clear that the decision ofpolice and prosecutors to lay charges and send a matter to youth courtrather than divert a case is not subject to judicial review (ss. 3(1)(d)(i)and 6(2)). Although a judge may informally signal that a case shouldbe diverted or may impose the very mild sentence of a reprimand for acase that should have been diverted, the success of the diversionaryprovisions of the YCJA is dependent on the attitudes and policies ofpolice and prosecutors and the availability of community-based alter-natives to youth court.

In a growing number of communities across Canada, extrajudicialsanctions programs have been established to allow minorviolent youth offences (such as assaults in schools) to be dealt with,for example, through victim-offender reconciliation or family groupconferencing, and that may result in an apology to the victim, restitu-tion, community service, or counselling for the offender (Bala 2003b)

As under the YOA, the maximum custodial sentence that may beimposed under the YCJA is three years, except for murder, forwhich it is ten years. 16 Under the YOA, juveniles sentenced to custodyEvaluating the Youth Criminal Justice Act after FiveYears 149

By 2007, the charge ratio in Ontario (49%) was only 16% higherthan the lowest ratio of 33% in British Columbia. Thus the YCJAappears not only to have caused a substantial increase in the use ofalternatives to charging but also to have caused a considerable reduc-tion in regional differences in the use of alternatives to charging

The YCJA articulates the purpose of sentencing in youth court, and thensets out specific principles of youth sentencing. Section 38(1) states that‘‘[t]he purpose of [youth court] sentencing . . . is to hold a youngperson accountable for an offence through the imposition of just sanc-tions that have meaningful consequences for the young person andthat promote his or her rehabilitation and reintegration.’

The YCJA encourages the diversion of cases from youth court, provid-ing for both ‘‘extrajudicial measures’’ and ‘‘extrajudicial sanctions.’’‘‘Extrajudicial sanctions’’ are non-court, community-based programsthat may result in responses, such as restitution to a victim or family-group conferencing, while the concept of ‘‘extrajudicial measures’’ isbroader, including extrajudicial sanctions as well as oral warnings orwritten cautions by the police and police referrals to community coun-selling agencies. The act clearly is intended to reduce the number ofyouths appearing in youth court, particularly first offenders and juve-niles accused of minor offences, as indicated by the presumption in s.4(c): ‘‘Extrajudicial measures are presumed to be adequate to hold ayoung person accountable for his or her offending behaviour if theyoung person has committed a non-violent offence and has not pre-viously been found guilty of an offence’’ (emphasis added). Further,there is a statutory direction that a police officer ‘‘shall’’ considerwhether to invoke an extrajudicial measure prior to commencing judi-cial proceedings against a young person (s. 6). The act affirms theimportance and stresses the range of application of extrajudicial mea-sures, recognizing in s. 4(a) that ‘‘extrajudicial measures are often themost appropriate and effective way to address youth crime.’

Under the YOA, there were concerns that some youths were beingdetained before trial in situations where an adult would be released,for example in cases where a judge was concerned that a homelessyouth might be at risk of harm. The YCJA contains provisionsintended to reduce use of remand custody.Section 29(1) of the YCJA specifies that pre-trial detention shall not beused as a ‘‘substitute for appropriate child protection, mental health orother social measures.’’ Section 28 of the YCJA makes clear that ayouth should only be detained before sentencing in circumstanceswhere an adult could be detained, generally on the primary groundsof ensuring attendance in court or on the secondary grounds thatdetention is ‘‘necessary for the protection or safety of the public’’because of there is a ‘‘substantial likelihood’’ of offending or witnessintimidation (s. 515(10) Criminal Code). Further, s. 29(2) creates arebuttable presumption that detention on the secondary grounds, fo

The most significant new community-based sentence is the deferredcustody and supervision order (DCSO), which can be imposed bythe court even without special programming being introduced by aprovincial government. This sentence, analogous to the conditionalsentence of imprisonment available at the adult level, allows thecourt to permit the youth to remain in the community for the durationof the order, subject to supervision by probation officers. In the eventof an apprehended breach of the terms of release, the youth may beimmediately placed in custody for the balance of the sentence, withoutthe prior necessity of another court hearing. This sentence can beimposed for a period of up to six months, provided that the youthhas not committed a serious violent offence. The DCSO is only to beimposed if the court concludes that a custodial sentence must beimposed. This new sanction represents the last opportunity for thecourt to spare the offender committal to custody, with the youth ona ‘‘much shorter leash’’ than probation

he principles recognize,however, that this is to be a limited accountability in comparisonto that of adults, ‘‘consistent with the greater dependency of youngpersons and their reduced level of maturity.’’ Judicial concerns aboutthe heightened vulnerability and limited accountability of adolescentsare illustrated by R. v. R.W.C., the first Supreme Court decision inter-preting the YCJA, where the Court ruled that ‘‘young offender’’ statusis a mitigating factor when deciding how to apply the provisions of thes. 487.051 Criminal Code that govern taking a DNA sample from aperson found guilty of a primary designated offence. These concernsare also reflected in the Court’s 2008 decision in R. v. D.B., which heldunconstitutional provisions of the YCJA that create a presumption ofadult sentencing for the most serious offences; that decision is morefully discussed below

the youth court level. Some of these new sentences, such as non-residential orders (attendance centres) and intensive supervisionand support, are intended to provide youth with more supervisionand support in the community. These new sentences may only beimposed where the provincial government decides to provideservices. Although significant efforts have been made to establishthese services in all provinces, there has been very little recordeduse of the sentence of intensive supervision and support outsideof British Columbia. Of the 347 recorded sentences of intensive super-vision and support in Canada in 2006/2007, 301 were in BritishColumbia

t is difficult to assess the impact of the YCJA on national rates ofyouth in remand custody because data are not available for Ontarioprior to 2003/200411 – and Ontario accounts for almost half thenational total number of young persons in remand custody inCanada. The line for average daily rates of youth in remand custodyin ‘‘Canada’’ in Figure 5 omits Ontario (and Nunavut). There was adecrease in 2003/2004, but it was preceded by decreases of similarmagnitude in 2002/2003 and in 1998/1999 and 1999/2000, and itwas followed by substantial increases in 2006/2007 and 2007/2008.The average rate of youth in remand custody in 2007/2008 (36 per100,000) was the same as in 2000/2001. The rate of remand custody inQuebec – already relatively low – dropped by 23% in 2003/2004 to14 per 100,000 and has remained at the new lower level since then.There is no evidence of decreases in the use of pre-trial detentionunder the YCJA for youth in the other regions, and there are recentsubstantial upward trends in the Atlantic and Prairie regions. Regionalvariations persist and, in some cases, are increasing. In 2007/2008, on aper capita basis, more than five times as many youth were in remandcustody in the Prairie region as in Quebec.

The omission of any reference to deterrence in the YCJA statement ofsentencing purpose may have contributed to lowering the number ofcustodial sentences imposed in youth court (Cesaroni and Bala 2008).Its absence in the act, in contrast to the Criminal Code, suggests thatgeneral and specific deterrence are not to be objectives of sentencing inyouth court. A number of early judgments under the act emphasizedthe absence of explicit mention of deterrence in the act as a reason forimposing a non-custodial sentence (Roberts and Bala 2003). In 2006,the Supreme Court of Canada rendered its decision in R. v. B.W.P., oneof the first cases under the new act to reach the highest court. Theunanimous decision of the Court upheld a trial decision that empha-sized the importance of rehabilitation. The Court discussed the role ofdeterrence in sentencing, observing that for adults ‘‘general deterrenceis factored in the determination of the sentence, the offender is pun-ished more severely, not because he or she deserves it, but becausethe court decides to send a message to others who may be inclined toengage in similar criminal activity’’ (R. v. B.W.P. at para. 2). TheSupreme Court recognized that under the previous statute, the YOA,general deterrence had been an objective of sentencing youths, albeitto a lesser extent than for adults. The Court, accepted, however, thatthe YCJA established ‘‘a new sentencing regime’’ for young offendersin Canada. Justice Charron wrote that the act ‘‘sets out a detailed andcomplete code for sentencing young persons under which terms it isnot open to the youth sentencing judge to impose a punishment for thepurpose of warning, not the young person, but others against enga-ging in criminal conduct. Hence, general deterrence is not a principleof youth sentencing under the present regime’’ (R. v. B.W.P. at para. 4).The Supreme Court also recognized that, while general deterrenceshould not be an objective in sentencing youth offenders, the factthat a youth is to be held accountable in youth court undoubtedlyhas ‘‘the effect of deterring the young person and others from commit-ting crimes’’ (R. v. B.W.P. at para. 4

Thus rehabilitation is as important as preventing crime and imposingmeaningful consequences upon the offender. Further, the long-termprotection of the public is seen as the consequence of rehabilitationand accountability, rather than as an independent objective of theyouth justice system. This statement directs judges to impose sen-tences that facilitate the rehabilitation of young offenders, ratherthan impose custodial sentences that will merely incapacitate them

A third principle that restricts the use of custody is more clearly bind-ing on youth court judges, with s. 39(5) explicitly stating that a youthcourt ‘‘shall not’’ use custody as a substitute for a child protection,mental health, or other social measure. Under the YOA, a commonjustification for imposing a custodial sentence on troubled adolescentswas that the judge could see no other way of providing the necessarysocial intervention for an adolescent at risk. Under the YCJA, thisjustification for the imposition of custody is prohibited.Finally, a youth court is obliged, prior to imposing custody, to consider apre-sentence report prepared by a probation officer, as well as anysentencing proposal made by the young offender or his or her counsel.The YCJA also permits a judge to convene a conference or refer a case toa community-based conference before imposing a sentence. This stepmight facilitate receiving advice from family or community members orcould allow for a victim–offender meeting before sentencing (s. 41).Section 39(9) requires youth court judges who impose a term of cus-tody, to provide reasons why ‘‘it has determined that a non-custodialsentence is not adequate’’ to achieve the purpose of sentencingascribed to the youth court system. This is yet another provision ofthe YCJA that creates an impediment to the imposition of a custodialterm in youth court

The preamble to the YCJA makes clear the intent of Parliamentthat Canada should ‘‘have a youth criminal justice system thatreserves its most serious interventions for the most serious casesand reduces the over-reliance on incarceration for non-violent youngpersons.’’ In its 2005 decision in R. v. C.D. (at para. 36), the SupremeCourt cited the preamble as a justification for adopting a narrow inter-pretation of the term ‘‘violent offence,’’ restricting the possibilities forutilizing s. 39(1)(a) to impose a custodial sentence. Similarly, in R. v.B.W.P. (at para. 35), the Court cited the preamble as a justification forruling that general deterrence is not a legitimate consideration in thesentencing of adolescents under the YCJA

shows that the rate per 100,000 of youth identified bypolice as chargeable – generally known as the (police) recorded youthcrime rate8 – has changed very little since the YCJA came into effect in2003. Although it fluctuated during the 1990s, it was almost constantfrom 2001 to 2007 at about 8,000 per 100,000, the same level as in themid-1980s. The unchanged level of recorded youth crime before andafter 2003 has two major implications. First, it suggests that the YCJAhas not resulted in an increase in youth crime. 9 Second, since the percapita rate of youth apprehended by police did not change, any‘‘downstream’’ changes in per capita rates of court cases or custodialpopulations following the introduction of the YCJA must be due tochanges in the functioning of the youth justice system. In the absenceof any other plausible explanation, such changes can be attributed tothe impact of the YCJA.

second principle to be observed before a custodial sentence isimposed is designed to discourage judges from escalating the severityof the sentence in response to subsequent offending. Having imposedan alternative to custody for one offence, some judges may ‘‘up-tariff’’and impose a custodial sentence if a youth reappears before the court,reasoning that the first sentence was insufficiently severe to discou-rage the offender. Section 39(4) attempts to constrain this judicialpractice, providing that ‘‘[t]he previous imposition of a particularnon-custodial sentence on a young person does not preclude ayouth justice court from imposing the same or any other non-custodialsentence for another offence.’’ While this provision does not prohibitjudges from following the ‘‘step principle’’ logic at sentencing, theprovision means that the same alternative sanction may be imposedon consecutive occasions

If the case before a youth court satisfies one of the four conditions ins. 39(1), a number of other custody-related principles must still beconsidered before a court can imprison the young offender. The firstrestriction is a clear reminder to judges in s. 39(2) of the principle ofrestraint with respect to the use of custody, even if one of the condi-tions of s. 39(1) is satisfied:[I]f [one of the criteria for custody] appl[ies], a youth justicecourt shall not impose a custodial sentence . . . unless the court hasconsidered all alternatives to custody raised at the sentencinghearing that are reasonable in the circumstances, and determinedthat there is not a reasonable alternative, or combination of alter-natives, that is in accordance with the purpose and principles [ofsentencing at the youth court level]. (emphasis added)Evaluating the Youth Criminal Justice Act after FiveYears 147

The YCJA has clearly resulted in a significant drop in the number ofyouth charged by police and an increase in the use of various methodsof police diversion. Figure 1 shows changes from 1986 to 2007 in therates per 100,000 of youth who were charged5 and diverted by police. 6In 2003, the year that the YCJA came into effect, the rate of youthcharged by police dropped by 18% from the previous year – from4,490 per 100,000 to 3,690 – and the rate of youth dealt with by alter-natives to charging (‘‘cleared otherwise’’) increased by a similaramount. For the first time since youth justice statistics were collected,more youth apprehended by police were dealt with by alternatives tocharging than by laying of a criminal charge.7 Since 2003, the rates ofyouth charged and cleared otherwise have remained almost constantand show no signs of returning to their pre-YCJA levels.

Accordingly, early in this decade, the federal government set as aprimary goal of its juvenile justice reform a reduction in the numberof juveniles being sentenced to imprisonment (Canada, Department ofJustice 2002). The clarity of the government’s position with respect tothe goal of the new legislation has likely played an important role inachieving a significant reduction in the number of admissions to youthcustodial facilities. This level of clarity for sentencing legislation hasrarely, if ever, been achieved in Canada

Section 39 is likely responsible for a significant portion of the reduc-tion in the use of custody, since under the YOA there were significantnumbers of young offenders who were imprisoned but who fell out-side any of the four conditions now identified by the YCJA as justify-ing imprisonment. It is noteworthy that a youth can receive a custodialsentence for breach of probation or some other community-based sen-tence only if the youth has breached a previous community-basedsentence; that is, a first breach of probation cannot result in a custodialsentence. Further, apart from exceptional circumstances or where ayouth has previously failed to comply with non-custodial sentences,a non-violent offence can result in a custodial sentence only if theoffence is reasonably serious (i.e., an offence for which the maximumadult sentence is greater than two years) and there is a ‘‘history thatindicates a pattern of findings of guilt’’ (s. 39(1)(c)) In 2008, theSupreme Court again emphasized the need to narrowly construe thesentencing provisions of the act, ruling that this provision generallyrequires a minimum of three prior judicial findings of guilt (R. v.S.A.C.)

For example, recent research has suggested that thedeeper that a young person penetrates into the youth justice system,the less likely he or she is to desist from further offending (see McAraand McVie 2007 4 ; Laub and Sampson 2003). Thus one of the goals ofany youth justice system – encouraging desistance and reducingre-offending – can be impeded by the use of more intensive forms ofintervention, such as custody

The Supreme Court held that the offence of dangerous driving, invol-ving a high-speed police chase of a youth in a stolen vehicle, was not a‘‘violent offence,’’ as it did not involve actual bodily harm or the intentto cause harm, and accordingly, a youth found guilty of this offencecould not receive a custodial sentence

Thus there are only four circumstances in which a young offender maybe committed to custody. Significantly, in its first sentencing decisionunder the YCJA, R. v. C.D., the Supreme Court held that s. 39(1) shouldbe ‘‘narrowly construed,’’ emphasizing that this provision should be

The high rate of use of courts and custody is generally acknowledgedto be a more pressing problem at the juvenile level than for adults, asinvolvement in the formal justice system and imprisonment can havemore profound and deleterious effects for adolescents than for adults.Community-based responses represent a cost-effective way to dealwith juvenile offenders, especially those who have committed lessserious offences and who do not have an extensive history of offend-ing. Custodial placement can often be a more punitive sentence forjuveniles than for adults because they are less able to cope with penalsequestration, and they may be more susceptible to the negative effectsof inmate subculture (Cesaroni and Peterson-Badali 2005). Further,even though there is generally a greater emphasis on rehabilitationin youth custody facilities, imprisonment deprives adolescents of thesocial milieu on which they depend for their moral and psychologicaldevelopment, and this may increase the likelihood of school failure, awell-established contributor to juvenile delinquency (Howell 1997)

At the adult level in Canada, there are no specific offence-based cri-teria that must be met before an adult offender is imprisoned. In con-trast, the provisions in the YCJA relating to the imposition of acustodial sentence in youth court are far more restrictive, withs. 39(1) establishing four ‘‘gateways’’ 13 to custody:A youth justice court shall not commit a person to custody . . . unlessa the young person has committed a violent offence; [or]b the young person has failed to comply with non-custodial sen-tences; [or]c the young person has committed an . . . offence for which anadult would be liable to imprisonment for a term of more thantwo years and has a history that indicates a pattern of findings ofguilt . . . ord in exceptional cases where the young person has committed anindictable offence, the aggravating circumstances of the offenceare such that the imposition of a non-custodial sentence would beinconsistent with the purpose and principles set out in section 38

Relative to that of other western nations, the use of juvenile custody inCanada was high under the YOA (e.g., Bala 2003a; Doob and Sprott2004; Doob and Cesaroni 2004). Most scholars agreed that the YOAprovided little real guidance with respect to the exercise of policediscretion (Carrington 1999; Carrington and Schulenberg 2003) orthe use of custody for juveniles (e.g., Anand 1999b; Doob and Sprott2004). This absence of guidance may have contributed to the relativelyhigh rates of use of youth court and rates of youth custody in Canada,as well as to substantial variation across jurisdictions in Canada withrespect to the use of courts and custody.

Another provision of the YCJA (s. 38(2)(a)) places a limit on the severityof sentencing in youth court: the sentence must not result in a punish-ment that is more severe than the punishment that an adult offenderconvicted of the same offence in similar circumstances would receive.This principle codifies the rule that sentences for juveniles should neverbe more severe than those imposed on adult offenders and reflects themore general statement in the ‘‘Declaration of Principle’’ in the YCJAthat the youth justice system is premised on ‘‘fair and proportionat

The preamble to the YCJA itself makes clear that the act isalso intended to address Canada’s ‘‘over-reliance on incarceration’’ foryoung offenders

or those youths who proceed to youth court and are ultimately sen-tenced, the YCJA provides a detailed set of sentencing principles forjudges to apply. Proportionality is one of these principles (s. 38(2)(c)).Another principle is the concept of restraint with respect to imprison-ment: thus s. 38(2)(d) states that ‘‘all available sanctions other thancustody that are reasonable in the circumstances must be considered.’’Further, s. 38(2)(e) requires that, subject to the requirement that sen-tences are to be proportionate to the offence, ‘‘the sentence must be theleast restrictive sentence that is capable of achieving the purpose [ofsentencing].’’ Both of these general principles were also codified inCanada at the adult level as part of the reforms of 1996, and theirinclusion in the YCJA may not have had much direct effect on youthsentencing

In many ways, the YCJA represents an astute political compromise.The legislation attempts to address continuing public anxiety about arelatively small number of highly publicized cases involving the mostviolent youth offenders, while also responding to the growing con-cerns of juvenile justice professionals, advocates for youth, and aca-demic critics about the large numbers of youth being processedthrough the courts and placed in custody, often for non-violentoffences. At the time that the YCJA was introduced, a prominentlypublicized aspect of the act was the provisions intended ‘‘to respondmore firmly and effectively to the small number of the most serious,violent young offenders’’ in order to respond to the ‘‘disturbingdecline in public confidence in the youth justice system’’ in Canada(Justice Minister Anne McLellan, as cited in Canada, Departmentof Justice 1999).

At the adult level in Canada, there are no specific offence-based cri-teria that must be met before an adult offender is imprisoned. In con-trast, the provisions in the YCJA relating to the imposition of acustodial sentence in youth court are far more restrictive, withs. 39(1) establishing four ‘‘gateways’’13 to custody:A youth justice court shall not commit a person to custody . . . unlessa the young person has committed a violent offence; [or]b the young person has failed to comply with non-custodial sen-tences; [or]c the young person has committed an . . . offence for which anadult would be liable to imprisonment for a term of more thantwo years and has a history that indicates a pattern of findings ofguilt . . . ord in exceptional cases where the young person has committed anindictable offence, the aggravating circumstances of the offenceare such that the imposition of a non-custodial sentence would beinconsistent with the purpose and principles set out in section 38.

Another provision of the YCJA (s. 38(2)(a)) places a limit on the severityof sentencing in youth court: the sentence must not result in a punish-ment that is more severe than the punishment that an adult offenderconvicted of the same offence in similar circumstances would receive.This principle codifies the rule that sentences for juveniles should neverbe more severe than those imposed on adult offenders and reflects themore general statement in the ‘‘Declaration of Principle’’ in the YCJAthat the youth justice system is premised on ‘‘fair and proportionate

For those youths who proceed to youth court and are ultimately sen-tenced, the YCJA provides a detailed set of sentencing principles forjudges to apply. Proportionality is one of these principles (s. 38(2)(c)).Another principle is the concept of restraint with respect to imprison-ment: thus s. 38(2)(d) states that ‘‘all available sanctions other thancustody that are reasonable in the circumstances must be considered.’’Further, s. 38(2)(e) requires that, subject to the requirement that sen-tences are to be proportionate to the offence, ‘‘the sentence must be theleast restrictive sentence that is capable of achieving the purpose [ofsentencing].’’ Both of these general principles were also codified inCanada at the adult level as part of the reforms of 1996, and theirinclusion in the YCJA may not have had much direct effect on youthsentencing.

In many ways, the YCJA represents an astute political compromise.The legislation attempts to address continuing public anxiety about arelatively small number of highly publicized cases involving the mostviolent youth offenders, while also responding to the growing con-cerns of juvenile justice professionals, advocates for youth, and aca-demic critics about the large numbers of youth being processedthrough the courts and placed in custody, often for non-violentoffences. At the time that the YCJA was introduced, a prominentlypublicized aspect of the act was the provisions intended ‘‘to respondmore firmly and effectively to the small number of the most serious,violent young offenders’’ in order to respond to the ‘‘disturbingdecline in public confidence in the youth justice system’’ in Canada(Justice Minister Anne McLellan, as cited in Canada, Departmentof Justice 1999).

As under the YOA, the maximum custodial sentence that may beimposed under the YCJA is three years, except for murder, forwhich it is ten years.

The most significant new community-based sentence is the deferredcustody and supervision order (DCSO), which can be imposed bythe court even without special programming being introduced by aprovincial government. This sentence, analogous to the conditionalsentence of imprisonment available at the adult level, allows thecourt to permit the youth to remain in the community for the durationof the order, subject to supervision by probation officers. In the eventof an apprehended breach of the terms of release, the youth may beimmediately placed in custody for the balance of the sentence, withoutthe prior necessity of another court hearing. This sentence can beimposed for a period of up to six months, provided that the youthhas not committed a serious violent offence. The DCSO is only to beimposed if the court concludes that a custodial sentence must beimposed. This new sanction represents the last opportunity for thecourt to spare the offender committal to custody, with the youth ona ‘‘much shorter leash’’ than probation

the youth court level. Some of these new sentences, such as non-residential orders (attendance centres) and intensive supervisionand support, are intended to provide youth with more supervisionand support in the community. These new sentences may only beimposed where the provincial government decides to provideservices. Although significant efforts have been made to establishthese services in all provinces, there has been very little recordeduse of the sentence of intensive supervision and support outsideof British Columbia. Of the 347 recorded sentences of intensive super-vision and support in Canada in 2006/2007, 301 were in BritishColumbia.1

A third principle that restricts the use of custody is more clearly bind-ing on youth court judges, with s. 39(5) explicitly stating that a youthcourt ‘‘shall not’’ use custody as a substitute for a child protection,mental health, or other social measure. Under the YOA, a commonjustification for imposing a custodial sentence on troubled adolescentswas that the judge could see no other way of providing the necessarysocial intervention for an adolescent at risk. Under the YCJA, thisjustification for the imposition of custody is prohibited.Finally, a youth court is obliged, prior to imposing custody, to consider apre-sentence report prepared by a probation officer, as well as anysentencing proposal made by the young offender or his or her counsel.The YCJA also permits a judge to convene a conference or refer a case toa community-based conference before imposing a sentence. This stepmight facilitate receiving advice from family or community members orcould allow for a victim–offender meeting before sentencing (s. 41).Section 39(9) requires youth court judges who impose a term of cus-tody, to provide reasons why ‘‘it has determined that a non-custodialsentence is not adequate’’ to achieve the purpose of sentencingascribed to the youth court system. This is yet another provision ofthe YCJA that creates an impediment to the imposition of a custodialterm in youth court.

A second principle to be observed before a custodial sentence isimposed is designed to discourage judges from escalating the severityof the sentence in response to subsequent offending. Having imposedan alternative to custody for one offence, some judges may ‘‘up-tariff’’and impose a custodial sentence if a youth reappears before the court,reasoning that the first sentence was insufficiently severe to discou-rage the offender. Section 39(4) attempts to constrain this judicialpractice, providing that ‘‘[t]he previous imposition of a particularnon-custodial sentence on a young person does not preclude ayouth justice court from imposing the same or any other non-custodialsentence for another offence.’’ While this provision does not prohibitjudges from following the ‘‘step principle’’ logic at sentencing, theprovision means that the same alternative sanction may be imposedon consecutive occasions.

f the case before a youth court satisfies one of the four conditions ins. 39(1), a number of other custody-related principles must still beconsidered before a court can imprison the young offender. The firstrestriction is a clear reminder to judges in s. 39(2) of the principle ofrestraint with respect to the use of custody, even if one of the condi-tions of s. 39(1) is satisfied:[I]f [one of the criteria for custody] appl[ies], a youth justicecourt shall not impose a custodial sentence . . . unless the court hasconsidered all alternatives to custody raised at the sentencinghearing that are reasonable in the circumstances, and determinedthat there is not a reasonable alternative, or combination of alter-natives, that is in accordance with the purpose and principles [ofsentencing at the youth court level]. (emphasis added)

Section 39 is likely responsible for a significant portion of the reduc-tion in the use of custody, since under the YOA there were significantnumbers of young offenders who were imprisoned but who fell out-side any of the four conditions now identified by the YCJA as justify-ing imprisonment. It is noteworthy that a youth can receive a custodialsentence for breach of probation or some other community-based sen-tence only if the youth has breached a previous community-basedsentence; that is, a first breach of probation cannot result in a custodialsentence. Further, apart from exceptional circumstances or where ayouth has previously failed to comply with non-custodial sentences,a non-violent offence can result in a custodial sentence only if theoffence is reasonably serious (i.e., an offence for which the maximumadult sentence is greater than two years) and there is a ‘‘history thatindicates a pattern of findings of guilt’’ (s. 39(1)(c)) In 2008, theSupreme Court again emphasized the need to narrowly construe thesentencing provisions of the act, ruling that this provision generallyrequires a minimum of three prior judicial findings of guilt (R. v.S.A.C.).

The Supreme Court held that the offence of dangerous driving, invol-ving a high-speed police chase of a youth in a stolen vehicle, was not a‘‘violent offence,’’ as it did not involve actual bodily harm or the intentto cause harm, and accordingly, a youth found guilty of this offencecould not receive a custodial sentence

Thus there are only four circumstances in which a young offender maybe committed to custody. Significantly, in its first sentencing decisionunder the YCJA, R. v. C.D., the Supreme Court held that s. 39(1) shouldbe ‘‘narrowly construed,’’ emphasizing that this provision should be

The omission of any reference to deterrence in the YCJA statement ofsentencing purpose may have contributed to lowering the number ofcustodial sentences imposed in youth court (Cesaroni and Bala 2008).Its absence in the act, in contrast to the Criminal Code, suggests thatgeneral and specific deterrence are not to be objectives of sentencing inyouth court. A number of early judgments under the act emphasizedthe absence of explicit mention of deterrence in the act as a reason forimposing a non-custodial sentence (Roberts and Bala 2003). In 2006,the Supreme Court of Canada rendered its decision in R. v. B.W.P., oneof the first cases under the new act to reach the highest court. Theunanimous decision of the Court upheld a trial decision that empha-sized the importance of rehabilitation. The Court discussed the role ofdeterrence in sentencing, observing that for adults ‘‘general deterrenceis factored in the determination of the sentence, the offender is pun-ished more severely, not because he or she deserves it, but becausethe court decides to send a message to others who may be inclined toengage in similar criminal activity’’ (R. v. B.W.P. at para. 2). TheSupreme Court recognized that under the previous statute, the YOA,general deterrence had been an objective of sentencing youths, albeitto a lesser extent than for adults. The Court, accepted, however, thatthe YCJA established ‘‘a new sentencing regime’’ for young offendersin Canada. Justice Charron wrote that the act ‘‘sets out a detailed andcomplete code for sentencing young persons under which terms it isnot open to the youth sentencing judge to impose a punishment for thepurpose of warning, not the young person, but others against enga-ging in criminal conduct. Hence, general deterrence is not a principleof youth sentencing under the present regime’’ (R. v. B.W.P. at para. 4).The Supreme Court also recognized that, while general deterrenceshould not be an objective in sentencing youth offenders, the factthat a youth is to be held accountable in youth court undoubtedlyhas ‘‘the effect of deterring the young person and others from commit-ting crimes’’ (R. v. B.W.P. at para. 4)

The YCJA articulates the purpose of sentencing in youth court, and thensets out specific principles of youth sentencing. Section 38(1) states that‘‘[t]he purpose of [youth court] sentencing . . . is to hold a youngperson accountable for an offence through the imposition of just sanc-tions that have meaningful consequences for the young person andthat promote his or her rehabilitation and reintegration.’’

It is difficult to assess the impact of the YCJA on national rates ofyouth in remand custody because data are not available for Ontarioprior to 2003/200411 – and Ontario accounts for almost half thenational total number of young persons in remand custody inCanada. The line for average daily rates of youth in remand custodyin ‘‘Canada’’ in Figure 5 omits Ontario (and Nunavut). There was adecrease in 2003/2004, but it was preceded by decreases of similarmagnitude in 2002/2003 and in 1998/1999 and 1999/2000, and itwas followed by substantial increases in 2006/2007 and 2007/2008.The average rate of youth in remand custody in 2007/2008 (36 per100,000) was the same as in 2000/2001. The rate of remand custody inQuebec – already relatively low – dropped by 23% in 2003/2004 to14 per 100,000 and has remained at the new lower level since then.There is no evidence of decreases in the use of pre-trial detentionunder the YCJA for youth in the other regions, and there are recentsubstantial upward trends in the Atlantic and Prairie regions. Regionalvariations persist and, in some cases, are increasing. In 2007/2008, on aper capita basis, more than five times as many youth were in remandcustody in the Prairie region as in Quebec.

Under the YOA, there were concerns that some youths were beingdetained before trial in situations where an adult would be released,for example in cases where a judge was concerned that a homelessyouth might be at risk of harm. The YCJA contains provisionsintended to reduce use of remand custody.Section 29(1) of the YCJA specifies that pre-trial detention shall not beused as a ‘‘substitute for appropriate child protection, mental health orother social measures.’’ Section 28 of the YCJA makes clear that ayouth should only be detained before sentencing in circumstanceswhere an adult could be detained, generally on the primary groundsof ensuring attendance in court or on the secondary grounds thatdetention is ‘‘necessary for the protection or safety of the public’’because of there is a ‘‘substantial likelihood’’ of offending or witnessintimidation (s. 515(10) Criminal Code). Further, s. 29(2) creates arebuttable presumption that detention on the secondary grounds, fo

at the rate per 100,000 of youth identified bypolice as chargeable – generally known as the (police) recorded youthcrime rate8 – has changed very little since the YCJA came into effect in2003. Although it fluctuated during the 1990s, it was almost constantfrom 2001 to 2007 at about 8,000 per 100,000, the same level as in themid-1980s. The unchanged level of recorded youth crime before andafter 2003 has two major implications. First, it suggests that the YCJAhas not resulted in an increase in youth crime.9 Second, since the percapita rate of youth apprehended by police did not change, any‘‘downstream’’ changes in per capita rates of court cases or custodialpopulations following the introduction of the YCJA must be due tochanges in the functioning of the youth justice system. In the absenceof any other plausible explanation, such changes can be attributed tothe impact of the YCJA.

he YCJA has clearly resulted in a significant drop in the number ofyouth charged by police and an increase in the use of various methodsof police diversion. Figure 1 shows changes from 1986 to 2007 in therates per 100,000 of youth who were charged5 and diverted by police.6In 2003, the year that the YCJA came into effect, the rate of youthcharged by police dropped by 18% from the previous year – from4,490 per 100,000 to 3,690 – and the rate of youth dealt with by alter-natives to charging (‘‘cleared otherwise’’) increased by a similaramount. For the first time since youth justice statistics were collected,more youth apprehended by police were dealt with by alternatives tocharging than by laying of a criminal charge.7 Since 2003, the rates ofyouth charged and cleared otherwise have remained almost constantand show no signs of returning to their pre-YCJA levels.

It is difficult to assess the impact of the YCJA on national rates ofyouth in remand custody because data are not available for Ontarioprior to 2003/200411 – and Ontario accounts for almost half thenational total number of young persons in remand custody inCanada. The line for average daily rates of youth in remand custodyin ‘‘Canada’’ in Figure 5 omits Ontario (and Nunavut). There was adecrease in 2003/2004, but it was preceded by decreases of similarmagnitude in 2002/2003 and in 1998/1999 and 1999/2000, and itwas followed by substantial increases in 2006/2007 and 2007/2008.The average rate of youth in remand custody in 2007/2008 (36 per100,000) was the same as in 2000/2001. The rate of remand custody inQuebec – already relatively low – dropped by 23% in 2003/2004 to14 per 100,000 and has remained at the new lower level since then.There is no evidence of decreases in the use of pre-trial detentionunder the YCJA for youth in the other regions, and there are recentsubstantial upward trends in the Atlantic and Prairie regions. Regionalvariations persist and, in some cases, are increasing. In 2007/2008, on aper capita basis, more than five times as many youth were in remandcustody in the Prairie region as in Quebec.

Under the YOA, there were concerns that some youths were beingdetained before trial in situations where an adult would be released,for example in cases where a judge was concerned that a homelessyouth might be at risk of harm. The YCJA contains provisionsintended to reduce use of remand custody.Section 29(1) of the YCJA specifies that pre-trial detention shall not beused as a ‘‘substitute for appropriate child protection, mental health orother social measures.’’ Section 28 of the YCJA makes clear that ayouth should only be detained before sentencing in circumstanceswhere an adult could be detained, generally on the primary groundsof ensuring attendance in court or on the secondary grounds thatdetention is ‘‘necessary for the protection or safety of the public’’because of there is a ‘‘substantial likelihood’’ of offending or witnessintimidation (s. 515(10) Criminal Code). Further, s. 29(2) creates arebuttable presumption that detention on the secondary grounds, fo

By 2007, the charge ratio in Ontario (49%) was only 16% higherthan the lowest ratio of 33% in British Columbia. Thus the YCJAappears not only to have caused a substantial increase in the use ofalternatives to charging but also to have caused a considerable reduc-tion in regional differences in the use of alternatives to chargin

also shows that the rate per 100,000 of youth identified bypolice as chargeable – generally known as the (police) recorded youthcrime rate8 – has changed very little since the YCJA came into effect in2003. Although it fluctuated during the 1990s, it was almost constantfrom 2001 to 2007 at about 8,000 per 100,000, the same level as in themid-1980s. The unchanged level of recorded youth crime before andafter 2003 has two major implications. First, it suggests that the YCJAhas not resulted in an increase in youth crime.9 Second, since the percapita rate of youth apprehended by police did not change, any‘‘downstream’’ changes in per capita rates of court cases or custodialpopulations following the introduction of the YCJA must be due tochanges in the functioning of the youth justice system. In the absenceof any other plausible explanation, such changes can be attributed tothe impact of the YCJA

alternatives to charging. This indicator declined gently from 1991 to2002. In 2003 it dropped substantially from 56.4% to 44.6% charged: arelative change of 21% in one year.