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.

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 level

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. In

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.

n 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)

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.

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.

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.

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

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.

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 20074; 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 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)

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

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

A disproportionate representation of non-Caucasian races and ethnic groups,such as African American, Native American, and Hispanic youth, is observedin the rates of transfers to adult correctional facilities, as compared to otheryouth.401 As noted earlier in this report, adolescents pertaining to ethnicgroups or races other than Caucasian are disproportionately represented inevery stage of the criminal justice system, and such discrepancies arelikewise observed with regard to the greater representation of such groupsin adult prisons and jails and among those who receive the harshesttreatment.332. According to data covering the period 2002-2004, for example, youth ofAfrican American descent accounted for 16% of the total youth population inthe United States, and yet they represented 58% of those imprisoned in adultprisons.402 Similar discrepancies and overrepresentation, especially affectingAfrican American and Hispanic youth, were observed in more recent reportson the population of prisons nationwide. Native American youth,predominantly charged under federal jurisdiction, make up the majority ofthe federal juvenile population, which is held in separate facilities operatedby private parties under contract with the government.403333. At the state level, youth of African American and Hispanic descent are held inadult prisons in New York at disproportionate rates. Together they make up70% of the youth arrested, but 80% of those sent to adult facilities. It hasfurther been noted that most of these youth are members of communities oflower socioeconomic status, and would be unlikely to be able to afford bail.Overrepresentation is similarly observed in the severity of treatmen

urthermore, children are adversely affected due to insufficient age-appropriate training of staff in the adult system, and the lack of mentalhealth assessment and treatment services. Once children with mental healthillnesses enter the adult correctional system, they are not consideredchildren nor provided with required measures of protection or counseling,and are often improperly medicated. During the visits conducted by theIACHR to Colorado, incarcerated youth and their families indicated that theywere not able to access mental health services, even though a high number ofthem would require, at a minimum, counseling service

Consequently, these youth often suffer abuse, isolation, and assault, whilealso being placed in unsafe housing or solitary confinement in adult facilities.National reports indicate that incarcerated LGBTI youth are oftensegregated, “either in a misguided effort to protect them or based on theincorrect assumption that they are more likely to be sexually predatory.”

esbian, Gay, Bisexual, Transgender, and Intersex youth are also particularlyvulnerable when housed in adult jails and prisons, as they are frequentlytargets for harassment, bullying, and discriminatory treatment by otherincarcerated adults, as well as correctional staff.3

As observed by the IACHR during its visits to several states, girls are placedin what amounts to solitary confinement or in highly restricted segregation,due to the small size of the female adolescent population in adult facilities.Moreover, they are often denied access to regular programming and servicesthat are appropriate to their level of development. Reportedly, in adult jailssuch as those in Washington D.C., this has resulted in depression and suicideattempts.394325. During the consultation held in the preparation of this report, expertsinformed the Commission that in the state of Michigan, prior to recentreforms, male correctional staff had reportedly assaulted every one of theadolescent girls housed in adult facilities. Although all of the male staffmembers have since been removed, girls are now held segregated inmodified “cages” without access to programming.

With regard to the exceptional use of segregation for protective ordisciplinary reasons, the federal Prison Rape Elimination Act requires thatany child placed in isolation must be ensured access to legally mandatededucational programming or special education services, as well as to otherprogramming to the extent possible.386 In contrast, the Commission hasobserved that youth held in solitary confinement within adult prisons arenot only constrained from participating in educational programming, muchless other activities, but are given practically zero in-cell education oractivity

The Commission is troubled by the fact that most children and adolescentshoused in adult jails and prisons do not receive age-appropriateprogramming to adequately meet their developmental needs, as thesefacilities are specifically developed to house an adult population. Adultfacilities are usually unable to provide specific services for the physical andmental health needs of youths held there, or ensure sufficient access toeducational and vocational training programs, according to their age, gender,and individual characteristics.381 They are also not properly equipped tooffer positive role models as well as social interaction and experiences fordeveloping children.382There are no public policies or guidelines in theUnited States that specify the type of intervention and level of programmingthat should be guaranteed to youth in adult facilities

Children incarcerated in adult prisons and jails in the U.S. are not affordedsufficient levels of contact with their families and communities, and in manycases are restricted or discouraged from such contact or are purposefullyseparated from their families. This is yet another significant difference in thetreatment that youth receive when held under the custody of adultcorrectional systems, in contrast to juvenile systems which cite family andcommunity contact as a crucial element of rehabilitation and socialreintegration.310. Services for facilitating contact with family for incarcerated youth are oftennon-existent in adult facilities, and thus in some cases this right is denied.During its visit to D.C., previously incarcerated youth and civil societyorganizations affirmed to the Commission that youth awaiting trial or post-conviction proceedings in the federal court system are not permitted in-person visits. They are restricted to seeing their families through videointerviews, and due to these extreme restrictions, most families do notattempt to visit their children. During a hearing, the Commission receivedinformation that in Michigan, youth are often placed in jails and prison faraway from their families and are charged 4 dollars for a 15 minute call andcharged for stamps, envelopes and paper.373

A recent report on the effects of these laws hasfound that children are forced to endure excessive periods of time in pre-trial confinement while prosecutors make the decision as to whether tocharge them in the adult or juvenile system

n particular, the Commission is alarmed that most states in the U.S. allowadolescents awaiting trial in the adult system to be confined in adult jails, asopposed to juvenile centers or alternatives such as community-basedsupervision under the juvenile system. It also has been informed that 14states have laws in place that have made pre-trial detention in adult facilitiesmandatory for those youth tried in the adult system. In many other states thematter of where youth awaiting trial are held in custody mostly depends onlocal policies and practice

he lack of specialized services and the overall punitive treatment andconditions of adult facilities, and especially the use of solitary confinement,lead to detrimental mental and physical consequences for the children heldthere, such as severe depression and anxiety, incidents of self-harm, andsuicide attempts. Furthermore, the various forms of isolation or segregationexacerbate existing mental health problems or other disorders that youthmay have, placing them at an even greater risk of suicide

Statistics on deaths ofadolescents confined in adult jails reveal that 75% of such deaths were as aresult of suicide.356 According to data from adult facilities nationwide, over40 incarcerated adolescents committed suicide between 2000 and 2012,twice the rate of incarcerated adults.3

The Commission received information about children incarcerated withadults in the State of Michigan in a hearing held during its 147th Period ofSessions351. The information stated that there were 2000 children in adultprisons in Michigan. Petitioners stated that they interviewed 69 youth. 79%of them had spent time in solitary confinement; one third of them for morethan 30 days. They did not have enough food, and food was taken away as a

Interviews with families of incarcerated youth revealed that adolescentssuffer gruesome and torturous treatment from adult correctional officers.The Commission has also been made aware of multiple cases of youth whohave been physically abused, sexually harassed, assaulted, and raped byadult prisoners and even staff, as a result of their increased vulnerability inadult systems. This heightened risk affects all youth who enter adultfacilities

During the expert meeting held on this subject, the IACHR was informed of aform of structured violence in adult prisons and jails, known as the“gladiator mechanism,” in which prison staff members facilitate violenceamong prisoners in order to maintain order and control, inflicting very highlevels of abuse on children. Under this practice, adolescents incarcerated inadult settings are forced to become predatory, in order to protect themselvesfrom abuse and attack by adult inmates. Youth are frequently placed withparticularly dangerous adult prisoners in order to “teach them a lesson.”Officials charged with overseeing the younger prisoners are less experiencedand lack the training to work effectively with children, worsening theabusive system. According to experts, youth demonstrated great levels offear when interviewed, sensing a constant threat to their survival in theabusive conditions of adult facilities.

Adolescentsheld in one particular jail suffered 565 incidents of use of force by staff, andmany other incidents went unreported due to the lack of accountability ofthe adult facilit

Further reports have revealed that youth are especially targeted in adultfacilities and receive significant levels of abuse from correctional officers,such as physical and verbal mistreatment, racial harassment, threats, andretaliation. Surveys in Greene Prison in New York State report, for example,that 86% of adolescent inmates have suffered some form of abuse by thestaff.348

The Commission was also informed that additional problems in theimplementation of the PREA standards include the fact that, in practice,children are often isolated in order to restrict their contact with imprisonedadults, and states are only required to make best efforts to provide specialservices and programming for youth. Girls are especially negatively affectedand are often held in solitary confinement in order to isolate them fromadults. This was observed by the Commission during its visit to WashingtonD.C., as well as to Colorado, where youth under the age of 18 were practicallylocked-down without access to recreation and programming, in order tomaintain “sight-and-sound” distance from the young adult population.During its visit to Rikers Island, in NY, the Commissioner interviewed someyouth who informed her that youth inmates were given sleeping pills andanti-depression pills and kept inside their cells for long periods of time.During the visit to the facilities, the Commission saw youth who reportedbeing kept in their cells during 23 hours each day, and some of thepaperwork showed several of them were given medicines. When the guardswere asked how often doctors came to prescribe these medicines, the guardsinformed the Commission that a doctor had not visited the inmates

certified that they are in compliance, while 4 states have refused tocomply. 347The majority of states have issued assurances that they areworking to come into compliance, which allows them to avoid the fundingpenalty

he Prison Rape Elimination Act (PREA) is a federal law enacted in 2003 thatmandates protection against sexual assault of those persons incarcerated inboth the juvenile and adult systems.345 This law authorized the drafting ofwhat are known as PREA standards, which were developed with states’contributions over a period of time following the enactment of the Act, andwhich have come into effect under the authority of the U.S. Department ofJustice as of August 20, 2012. Inter alia, these federal standards require“sight and sound” as well as physical separation of youth from adults in anyconfinement or correctional facility, for the purpose of preventing sexualassault, especially among the more vulnerable youth population.346 In thismanner, the PREA regulations intentionally attempt to bridge the gap in theJuvenile Justice and Delinquency Prevention Act, by extending the separationrequirement to all incarcerated youth, regardless of whether they are triedin the juvenile or adult system.284. As the Commission was informed during the expert consultations held inpreparation of this report, several significant concerns remain with respectto the implementation of the PREA standards. An important element of theoversight of these standards is the PREA auditing, which takes the form of 2-3 day visits or examinations conducted by certified PREA auditors of thestates’ facilities in order to ensure compliance with the standards. Expertshave stated to the IACHR that data on what really occurs withinincarceration facilities is difficult to obtain through this oversight process,because the audits are infrequent, and announced in advance. This hindersthe collection of factual information

Specifically, studies conducted by the U.S. Government in 2005 and 2006with regard to the detention conditions in jails revealed that between 13%and 21% of those who were sexually assaulted by other incarceratedpersons were adolescents, a statistic greatly disproportionate to the 1% ofthe general population that youth accounted for during those years.

Multiple studies in the United States have shown that adult jails and prisonsare detrimental for children, as these facilities are designed for adults andare not equipped to keep children safe from the elevated risks of abuse andharm that they face inside them.340 Some of these include: youth are fivetimes more likely to suffer sexual abuse or rape in an adult facility ascompared to those held in juvenile facilities.341 Youth incarcerated in adultfacilities are also twice as likely to be physically abused by correctional staff,have a 50% higher chance of being attacked with a weapon,342 and have ahigh probability of witnessing or being the target of violence committed byother prisoners.3

uring its visits to U.S. correctional facilities the Commission also noticed theconsistent use of full restraints, including handcuffs and belly- and ankle-shackles on youth. This practice, known as “shackling,” is uniformly appliedto all youth in the justice system, regardless of whether they represent a riskof danger or escape. Its use is mandated for all courtroom appearances,where youth are especially affected in their ability to participate in thehearing that involves them. Moreover, its use is not limited to theseoccasions. Youth interviewed by the IACHR affirmed being subjected to suchdegrading treatment even for dental care visits outside of the secure adultfacilities, discouraging their access to these necessary services.

oreover, the inappropriate use of force by staff toward youth in adultprisons and jails creates a general climate of fear and dehumanization for thechildren who are housed there. During the expert consultation held inpreparation of this report, experts relayed to the Commission that childrendeprived of liberty in adult facilities are routinely subjected to multipleforms of adult punishment, including physical restraints, routine degradingsearches such as “pat and frisk”, the arbitrary use of pepper spray and otherharmful chemical agents, and even militarized cell extractions in which aninmate is physically subdued by a team of guards.275. During the visit to New York, the IACHR was informed of the generalenvironment of intimidation that exists in the adult facilities where youthare held, in particular in the Greene prison, which is commonly known as a“hands on facility.” Although the use of force is of low intensity, it is sufficientto create an environment of intimidation and control. For example, youth arefrequently subjected to practices such as “pat and frisk”, in which they areforced to face the wall and be physically “checked” by a correctional officer.

The conditions experienced by children held in solitary confinement in adultfacilities include lengthy isolation in small single cells measuring 6 feet by 8feet, for between 22 to 24 hours per day. They are deprived of physicalexercise, education, and human contact, as well as access to mental healthservices. Victims of such treatment have also described not being able toaccess medication, as well as being victims of racial or religiousdiscrimination

affected by the damaging impact of this practice, showing symptoms ofanxiety, depression, and paranoia after only a very short period of solitaryconfinement.

In Texas, a survey carried out in 2012 brought to light that youth were heldin solitary confinement in most jails, for excessive periods of time, often 6months to over a year. T

nationwide study conducted on the use of solitary confinement revealedthat children held in isolation are exceedingly restricted in physical exerciseand out-of-cell time, as well as with regard to contact with their family,causing detrimental results and even leading to suicide attempts.313 Ininterviews held in preparation of a report in Florida, youth held in an adultjail expressed that “in jail, for any little thing they put you in [solitary]confinement” and that they “were locked down most of the time.

pecifically, studies have shown that isolation causes or intensifies mentalhealth problems, producing psychological damage even in adults withoutany history of mental issues.309 This raises profound concerns, especiallyconsidering the elevated rates of use of isolation as a disciplinary measure in

A large body of national and international research highlights the harmfuleffect and psychological damage that solitary confinement has on people,and especially children.306 The U.S. Department of Justice has recognized that“[i]solation is a severe penalty to impose upon a juvenile, especially sincethis sanction is to assist in rehabilitation as well as punish a child. After aperiod of time, room confinement begins to damage the juvenile, causeresentment toward the staff, and serves little useful purpose.”307 Similarly,the federal Office of Juvenile Justice and Delinquency Prevention hasaffirmed the danger of the isolation of children and its inconsistency withjuvenile justice standards, finding that excessive isolation may constitutecruel and unusual punishment.3

For example, the Department of Justice found that adolescents in the RikersIsland Jail of New York City were regularly isolated 23 hours a day in smallcells for extended periods of weeks and even months, with only one hourdaily allowed for recreation and showering as a disciplinary measure.304 Thisinformation is consistent with what the IACHR observed in its visit to theRobert N. Davoren Complex (RNDC) in Rikers Island jail. In this regard, theCommission interviewed boys detained in the facility and met with severalofficials at the facility, as well as with Commissioner of the New York City

No federal or state legislation in the United States prohibits solitaryconfinement of youth held in adult facilities; only a few states expressly referto the use of isolation in their statutes.

Although there is no comprehensive national data on the isolation ofincarcerated children in the United States, it has recently been estimated thatapproximately 35,000 children are being held in solitary confinement in thejuvenile system alone.297 Such treatment is also imposed on children incustody in adult facilities. According to information reported by several largejails and prisons systems, more than 10% of the children housed there aresubjected to solitary confinement, while smaller facilities have reported that100% of the children they hold are in isolatio

Furthermore, while juvenile systems are required to hold youth inspecialized facilities, with an appropriate level of programming and services,adult correctional systems are not obligated to meet these requirements foryouth sentenced to their custody. Although laws at the federal level ensurethat youth convicted in federal courts are held in separate facilities for youth,children committed to states’ adult systems are not provided with thetreatment they need in order to effectively rehabilitate. Because many jailsand lock-ups are independent entities operating under the authority of local(municipal) government, there are no effective incentives to comply with thenational standards of youth incarceration

The nationwide practice of holding children in adult facilities in the UnitedStates has severe consequences for the children in question, primarily as aresult of the basic differences in the purpose and governing standards ofadult prisons and jails, as opposed to the approach of juvenile detention andresidential centers. While treatment of youth in juvenile systems is subject tospecial standards of protection according to the age and developmentalstatus of the inmate, the overall design, security classification and even thepermissible range of physical coercion used against inmates in adult facilitiesfrequently result in excessive use of force, solitary confinement, and manyother forms of treatment that are particularly damaging to children

he IACHR notes with concern that the JJDPA contains fundamental gaps,and in particular, youth who are charged, tried, or sentenced as adults areexcluded from the application of its provisions. Information received by theIACHR during the preparation of this report indicated that a proposedreauthorization of the Juvenile Justice and Delinquency Prevention Act waspresented to the U.S. Congress in 2014. This proposal, which is still pendingenactment, would extend the application of the requirement of separationfrom adults to those children in the adult criminal justice system

States are not legally required to separate youth from adults in adultfacilities.292 There are some non-mandatory standards like the Prison RapeElimination Act ("PREA") standards that do require that youth be separatedfrom adults but they are only implemented through a funding incentive.While the federal law for juvenile justice, i.e., the Juvenile Justice andDelinquency Prevention Act (JJDPA) as reauthorized in 2002, does establishthe separation of youth from adults as one of its core custody-relatedrequirements, its provisions do not apply to children and adolescents in theadult system.

It has been estimated that over a recent five-year period, 93,000 to 137,000children under the age of 18 were held in adult jails across the UnitedStates.289 According to information received by the IACHR, less than half ofthe states that allow pre-trial detention of youth in adult jails specificallyrequire their separation from adults.290 This creates situations that posegrave risk to their life and personal integrity

Only one fourth of U.S. states have laws that prevent most children frombeing placed in adult facilities. 282 According to the National PrisonerStatistics Program Report of 2009, more than half of the adolescents held inadult state prisons are there as a result of jurisdiction laws and only 7 states

s a result of state laws requiring or allowing youth in conflict with the lawto be tried as adults, an estimated 200,000 children and adolescents inconflict with the law are tried in adult criminal courts each year.277 TheIACHR is aware that the majority of U.S. states still have laws, policies, andpractices in place that enable them to incarcerate children in adultfacilities.278 The Commission notes that on any given day, according toavailable data, close to 3,000 adolescents are held in the adult prisonsystems279, with an additional 6,000-7,000 youth confined in adult jails280,most of whom are awaiting trial as a result of being charged with committingcrimes such as robbery and assault.

Considering the extreme difficulties faced by youth upon return to societyafter being subjected to adult treatment and its lifelong consequences, suchyouth require specially designed services following release in order tosuccessfully manage their reentry. However, due to the nature of thepunitive system that treated them as adults, such services generally do notexist, leaving formerly accused, convicted, or incarcerated youth to attemptreentry into society on their own, facing stigmatization and other factors thatlimit their possibilities and make them prone to failure

According to informationreceived by the IACHR, the absence of a policy of automatically sealing thecriminal records of all children has multiple and severe consequences for thechildren in question, such as difficulties in accessing employment, education,and housing. Studies have shown that such consequences impede theirrehabilitation and reintegration into society, making them more likely toreoffend.

Likewise, the conditional release of youth from prison in the adult system,under parole, is affected by a lack of specialized services to oversee andassist the reintegration of youth into the community. As with probationviolations, a youth’s failure to adhere to rules of conduct of parole that aregeared toward adults can result in imprisonment in adult facilities

urthermore, probation in adult correctional systems is supervised by adult-focused probation officers who do not have the training or experience theywould need in order to work effectively with adolescents, and operatesunder rules and conditions that are geared toward adults, making it difficultfor children to comply with the conditions of their probation. For example,the Florida statute governing adult probation contains no languageregarding rehabilitation, in contrast with the probation provisions in thejuvenile justice legislation.258 As the failure to comply with probationconditions may result in their incarceration, and services designed to assisttheir reintegration in light of their specific needs and level of developmentare usually absent, youth have repeatedly reported feeling that they were setup to fail, as was recounted to the IACHR during its visits to U.S. state

First of all, due to the fact that childrenare sentenced as adults, by default they are often sentenced to secureconfinement in the adult correctional system instead of less restrictiveplacement in residential or community-based settings as appropriate. This isexacerbated by the lack of specialized actors, including defense lawyers,prosecutors, judges and social workers, in the stage of the adult proceedingsin which the guilt of a child defendant is determined. Consequently theactors participating in these proceedings are uninformed

As observed by the Commission during its visit to Colorado, the offering ofalternative measures to youth charged with crime depends largely on theavailability of county resources and programming in each individual case,and therefore varies considerably. Funding for diversion alternatives iscounty-based, and individual case arrangements are determined byprosecutors’ offices. In many rural counties, no formal diversion programexists due to a lack of resources. Consequently, some youth end up indiversion in the juvenile system while others, for the same offense but indifferent counties, are transferred to adult courts. Data from other statesindicates that there may be a tendency to commit youth to the adultcorrectional system as opposed to the juvenile system, because whilejuvenile alternatives may require additional financial resources.

Access to such alternatives is also limited in practice. As reported by theWisconsin Department of Corrections, prosecutors usually limit their offersof alternative measures to only those youth who have no prior history ofoffenses and who are charged with non-violent offenses, regardless of theyouth’s individual circumstances. In such cases they may offer a deferredprosecution agreement, which could include drug and alcohol assessmentand treatment, drug testing, participation in therapy, community service, orparticipation in restorative justice programming. Youth who comply with therequirements may have their charges reduced or dismissed; otherwise,prosecution in court ensues

As detailed in this report, many youth who are treated as adults in the U.S.criminal justice systems should be eligible for alternatives to a formal adultcourt proceeding, but are excluded from this possibility pursuant to thecurrent laws and policies in place. In particular, the IACHR notes that, priorto referring cases to the court system, public prosecutors in the United Statesare authorized to drop the charges, defer prosecution with referral to adiversion program, or initiate the proceeding by filing charges. The option ofdeferred prosecution and referral to diversion programs would permitcommunity-based services and supervision. These measures, or a reductionor dismissal of the charges, should be seriously considered before a formalproceeding against the youth is initiated.207. However, in many states, prosecutors depend on the existence of availableprogramming and resources at the county level in order to consider theabove alternatives as a viable option for cases of youth charged withcommitting crimes. Reliable data on this stage of the proceedings isunavailable due to the fact that district attorneys make these determinationson a case-by-case basis.

The sentencing of juveniles to life without parole has been foundincompatible with the International Covenant on Civil and Political Rights, ahuman rights treaty ratified by the United States.250 In its recent review ofthe United States’ compliance under this treaty, the Human RightsCommittee stated that the U.S. “should prohibit and abolish the sentence oflife imprisonment without parole for juveniles, irrespective of the crimecommitted, as well as the mandatory and non-homicide-related sentence oflife imprisonment without parole

n fact, as stated in Florida’s criminal legislation, adult sentences arepresumed to be appropriate for youth who are convicted in the adultcriminal system, without consideration of the child’s needs and capacity forrehabilitation, and adult courts are not required to justify or give reasons forimposing adult sanctions on adolescents.235 Consequently, the number ofchildren sentenced to incarceration in the adult correctional system, asopposed to probation, varies greatly among the different localities in Florida.According to a recent Human Rights Watch report, 74% of youth tried asadults receive sentences of imprisonment in the 4 th Circuit, while only 12%do in the 11th Circuit.236198. The existence of mandatory minimum sentencing in Florida compounds thearbitrary impact of the adult criminal justice system on youth, not only at thesentencing stage, but also regarding the determination of guilt. Asprosecutors have been granted discretionary power to directly file chargesagainst youth in the adult system, they frequently use the threat of possiblelengthy minimum sentences in the adult courts as a way of obtaining a guiltyplea. Because adult sentences include the possibility of probation, youthoften plead guilty to charges in the hope of being offered this option.237199. Meanwhile in Michigan, most of the 18 specific offenses for which youth aretransferred to adult court mandate adult sentencing. For the other offensesthe law allows adult sentencing as an option, while also providing the optionof placing the youth under the responsibility of the Department of HumanServices.238 Adult sentencing in these cases may yield extreme results, asthose convicted must complete their full minimum sentence without thepossibility of alternatives to incarceration for good conduct, and regardlessof age.239 Adolescents aged 14 and older that are tried as adults may even besentenced to life without parole, although in accordance with the recentSupreme Court ruling,240 these sentences can no longer be mandatory

The Commission is awarethat in Florida, for example, children and adolescents may be sentenced inadult court with long-term consequences, as opposed to being considered fora range of age-appropriate sentencing options in the juvenile system. Whileyouth sentenced by juvenile courts face a maximum confinement of 36months in a secure facility for youth, accompanied by rehabilitative-focusedprograms, youth who are convicted as adults consistently face extremely

According to the American Medical Association, the American PsychiatricAssociation, other prominent organizations, and research that has beenconducted in the United States, it is harder for adolescents to control theirbehavior, nor do they have the foresight of a mature adult, because of thestage of their brain development.233 Youth do not take into account futureconsequences or implications in the same way or as much as adults do. Forthis reason, adolescents often engage in risky behavior, especially whenpressured by peers, and are not deterred from committing crimes by thethreat of harsh penalties.23

Of the youth convicted of violent offenses in adult criminal courtsnationwide, 79% received sentences of incarceration, compared to only 44%of those found guilty of violent offenses in the juvenile system who weresentenced to confinement.

Interviews with families of incarcerated youth in Florida likewise revealedthat proceedings in adult courts are fast-paced and complex, impeding familymembers from participating. They indicated that during their experiences inthe juvenile system, the court had taken special measures to guarantee thatthey were present and involved in any hearing, but once the case wastransferred to the adult system, they had been completely disregarded andwere not involved in their children’s hearings in adult court, a traumaticexperience for both the children and their families. Similar information wasprovided in New York, in interviews with families and adolescents in pre-trial detention

Through its various visits and its review of information provided, the IACHRhas repeatedly observed that parents’ active participation of their children isfrequently limited or obstructed when children are prosecuted as adults.This occurs mostly as a result of the fast pace and incomprehensibility ofadult criminal proceedings. Adult proceedings, having been designed forpersons who have reached the age of majority, have nor given considerationto the involvement of a defendant’s family. As a consequence of the barriersto parental involvement, children tried as adults are even less able tocomprehend the proceedings that affect them

The Commission has observed that in some cases, a further violation ofchildren’s rights is the fact that, as revealed by data referenced earlier in thisreport, they are held in pre-trial confinement in adult facilities for extendedperiods of time. One previously incarcerated youth whom the Commissioninterviewed during its visit to Washington D.C. reported having beendeprived of his liberty in an adult jail for approximately 3 years whileawaiting trial in the adult court system, before his charges were eventuallydismissed. The Commission received the same information in New Yorkduring its visit, especially from the adolescents it interviewed at RikersIsland. Multitudes of similar accounts from states across the U.S. have beenreported to the IACHR

The Commission has received information about instances in which theprinciple of presumption of innocence of youth was not respected, especiallyyouth who were facing trial in the adult system. This is exacerbated in thecontext of the pressure or even explicit threats that child defendants facewhen a prosecutor is considering the possibility of filing directly in adultcourts. According to the information received by the Commission,Prosecutors threaten to use their discretionary power to file cases directly inadult courts in order to compel youth to enter into plea bargains that ensurea custodial sentence in the juvenile system.170. The Commission has been informed that youth often admit to havingcommitted the offenses with which they are charged, in order to avoidprosecution, lengthy sentences, and other long-term consequences in theadult system.202 In fact, a report by the Department of Juvenile Justice inFlorida found that it is the adolescents least deserving of punishment byincarceration who are the most inclined to accept such plea bargains.203 Suchadverse effects are observed in counties across the state, where, according topublished reports, approximately 80% of youth sentenced to custody in thejuvenile system have been threatened with prosecution in the adult systemin order to obtain a guilty plea

Children who have spent time in both the juvenile and adult systems haveexplained that the adult systems can be incomprehensible. In its 2014report, Human Rights Watch reported that in interviews with more than ahundred adolescents whose cases were filed directly in adult courts inFlorida, and in interviews with their families, the interview subjectsconsistently admitted to feelings of incomprehension and confusion in theadult system. Similarly, an analysis of their cases revealed that many youthplead guilty to offenses that are eligible for adult prosecution, without fullycomprehending the consequences of such pleas.1

During its expert consultation in the preparation of this report, the IACHRwas informed that the competency of children being charged as adults is notevaluated, especially regarding the psychological consequences ofconfinement in adult facilities while awaiting trial. This negatively affectschildren’s right to be heard and to participate in the proceedings. Moreover,due to the design of the adult system, which is geared toward persons whohave reached the age of majority and from whom a corresponding level ofmaturity is therefore expected, children and adolescents very often do notcomprehend the proceedings that involve them. This is particularly critical,as any procedural protection is futile if the child involved does notunderstand the criminal proceedings to which such protections appl

In essence, the U.S. Supreme Court has recognized what separates childrenfrom adults, by acknowledging their lesser responsibility by virtue of theirimmaturity, even though they are able to commit acts as serious as thosecommitted by adults. Accordingly, any proceeding that involves them, as wellas the sanction imposed on children found guilty of crime, should respectthese differences.154. Despite this understanding at the highest level of the U.S. court system ofchildren’s level of development and lesser culpability, hundreds ofthousands of children in the United States are denied their essentialguarantees in adult criminal proceedings that do not respect or acknowledgetheir status as children, with what can be a devastating impact on their lives.These youth face adult treatment and punishment which all too ofterincludes a confusing proceeding neither they nor their family understand,much less participate in, lengthy adult sentences, incarceration in adultprisons, and a lifetime criminal record, instead of facing an age-appropriatetrial in the juvenile system, being sentenced to treatment for a limited timefor their rehabilitation, and being granted a cleared record upon satisfactorycompletion of the sentence.

Through a series of decisions of the Supreme Court of the United States,juvenile justice proceedings in the U.S. have been granted critical proceduralprotections, while maintaining several significant differences from adultproceedings.184 In 1966, courts were mandated to provide the “essentials ofdue process” when transferring youth to the adult system by judicial waiver.In 1967, youth were afforded four basic constitutional rights in hearings thatcould impose deprivation of liberty, making them participants rather thanbystanders in their proceedings.185 Further decisions made juvenile trialsequal to criminal trials, while making jury trial an exception in juvenileproceedings. Finally, more recent Supreme Court rulings, that will bediscussed further in this report, recognized the fundamental differencebetween children and adults, limiting the imposition of the death penalty and

According to the information received by the Commission, the rights ofchildren and adolescents who are charged with committing crimes in the U.S.are not duly protected at each stage of the proceedings, which in turn, hasfurther negative consequences for those who are transferred and sentencedin the adult system. In particular, the IACHR has received informationregarding: the absence of quality legal counsel; the possibility that youth canwaive their right to legal representation; the fact that youth undergo longperiods of time awaiting the disposition of their cases; and the possibilitythat many youth end up in the adult system as a result of plea agreements,without fully comprehending the consequences of such agreements.

The Commission notes with particular concern the increasing number ofadolescents that are waived by a juvenile court order to the adult system as aresult of charges for nonviolent crimes. According to the informationreviewed, 50% of the cases transferred to adult court by judicial discretionin 2010 were as a result of property, drug, and public order offenses,demonstrating an increase since 1993 in transfers to the adult system basedon these offenses, rather than an increase in transfers for more serious orviolent offenses.1

The laws that allow youth being tried in the adult system to have their casesreturned to the juvenile courts are known as “reverse waiver” provisions.The IACHR observes with concern that these laws exist in only 25 states.

Once an Adult, Always an Adult” Laws124. Other legislative provisions known as “once an adult/always an adult” lawshave been enacted by 34 states, under which any child or youth with a priorrecord in the adult system is automatically transferred to adult courts whencharged with committing another offense. In some states this operates for allsubsequent charges, and in other states applies only for subsequent felonycharges. These laws present another form of automatic exclusion of childrenfrom the juvenile justice system, in this case based on whether they havebeen previously tried in the adult system, and in some cases regardless o

The Commission highlights that international law mandates a separatejuvenile justice system for children, under which the traditional objectives ofcriminal justice, i.e., deterrence and punishment, must give way to therehabilitation and social reintegration of children and adolescents. 144Therefore, treating children as adults, even when they are accused ofcommitting the most serious offenses, is unacceptable. As stated by theCommittee on the Rights of the Child:Children differ from adults in their physical and psychologicaldevelopment, and their emotional and educational needs. Suchdifferences constitute the basis for the lesser culpability ofchildren in conflict with the law. These and other differencesare the reasons for a separate juvenile justice system andrequire a different treatment for children

The extreme violation of children’s rights that results from these laws wasrevealed in a recent case in Pennsylvania, which concerned a 10-year-oldchild who was charged with homicide and was subjected to mandatoryprosecution as an adult. According to the published facts, state lawsmandated that the prosecutor directly file the child’s case in adult courts,regardless of his age.137 These laws also prohibit the placement in juveniledetention facilities of children charged with homicide. Therefore the 10-yearold child was reportedly held for several months in pre-trial detention in anadult jail. Similar cases have been identified in other states, such as inWisconsin and Massachusetts, where adolescents as young as 12 and 14years of age, respectively, are required by law to be prosecuted in adultcourts when charged with more serious crimes

The Commission also observes the wide range of minimum ages at whichchildren can be tried as adults in the different U.S. states, as a result ofstatutory exclusion laws. In the state of Mississippi for example, 13 year-oldchildren are prosecuted as adults when charged with more serious crimes,while in the neighboring state of Alabama, the minimum age for statutoryexclusion is 16 years old. In certain states such as Pennsylvania andWisconsin, children as young as 10 years old are subjected to mandatoryprosecution in adult courts when accused of certain offenses, includingmurder and other crimes of violence against the person.135 In fact, Nevadaand Pennsylvania automatically exclude all children from the juvenile justicesystem when charged with murder, regardless of their ag

The offenses that are typically included in such statutory exclusionprovisions are the more serious or violent crimes, such as murder. However,several states have statutory exclusion provisions that provide for theautomatic exclusion of adolescents from the juvenile justice system evenwhen they are charged with less serious offenses. This is especially true instates where the law automatically excludes adolescents with any priorcriminal record, regardless of the seriousness of the new alleged offense.

Statutory or legislative exclusion provisions are transfer laws thatautomatically exclude children from juvenile jurisdiction due to specific,objective criteria such as age, offense charged, or the presence of a priorcriminal record. Such laws are in effect in 29 U.S. states.133 Under such laws,cases that meet the criteria are automatically filed in adult courts, withoutthe exercise of discretion by prosecutors. However, the Commission notesthat police and prosecutors can still decide whether or not to charge anoffense that requires statutory exclusion

In the United States, 12 states106 and the District of Columbia have enactedlaws sanctioning prosecutorial discretion to transfer children to adult courtsat the first instance for certain offenses. Eight jurisdictions 107 allowprosecutors to file charges against adolescents of 14 years of age and abovein adult courts for specific offenses, and in the state of Montana the minimumage was lowered to children as young as 12. Two states (Florida andNebraska) give prosecutors discretion to charge an adolescent of 16 or 17years of age for any felony, while in Wyoming prosecutors have thisdiscretion in cases involving children as young as 13.1

discretion when deciding whether to file in adult or juvenile courts, withoutbeing required to base their decision on any established standards.

The Commission received information about other transfer laws that allowprosecutors to bring cases involving child defendants as young as 10 yearsold directly to the adult courts. According to the information it received,under these laws, prosecutors generally have unrestricted discretion to filecases involving children in adult courts, without the requirement of a courthearing in which a determination could be made on the appropriateness ofadult versus juvenile court for the particular case

Several states enable juvenile courts to use their discretion even in casesinvolving very young children. Delaware has a mandatory waiver forchildren of any age who are charged with murder. The states of Hawaii,Idaho, Maine, Oregon, South Carolina, Tennessee, and West Virginia providefor judicial discretionary waiver, with no minimum age specified, in the caseof murder.97 This issue is even more serious in states where judicialdiscretionary waiver laws are so broad that they apply to any offence andany age, such as in Alaska, Delaware, and Washington State.9877. During its visit to Colorado, the IACHR observed that children as young as 12years old are eligible to be excluded from the juvenile justice system andtransferred by court order to adult criminal courts when they are chargedwith more serious crimes, including violent sexual offenses. Adolescentsaged 14-15 years may likewise be removed from juvenile jurisdiction andsent to adult courts when charged with a wider range of offenses.78. In Colorado the juvenile court is empowered to make such waiver decisionsif certain criteria are met, namely, if, “after investigation and a hearing, thejuvenile court finds it would be contrary to the best interests of the child orof the public” for the court to retain its juvenile jurisdiction.99 The juvenilecourt judge is required to consider a set of 24 factors when making thedecision of whether or not to waive jurisdiction, and is allowed to usediscretion with regard to the amount of weight given to each factor.100 TheIACHR notes with particular concern that this decision is adopted by adultcourts that are not specialized in juvenile justice.1

as many as 6,000 youth have been transferred toadult courts by means of juvenile court discretion in a single year

As a result, 45 states now allow youth to be transferred from the juvenilesystem to the adult system by way of judicial discretion, 14 States and theDistrict of Columbia 93 have included presumptive waiver in their legislation,and 15 states94 provide for transfer of adolescents’ cases to adult courtsthrough mandatory waiver provisions.95

Judicial waiver laws either authorize or require juvenile court authorities totransfer youth from the juvenile system to the adult system, on a case-by-case basis, with different jurisdictions offering varying degrees of flexibilityto the courts. There are three main forms of judicial waiver provisions: i)discretionary waiver, which gives full authority to judges to use their owndiscretion in deciding whether or not to waive the case to adult courts; ii)presumptive, in which case the adult system is presumed to be theappropriate venue, unless otherwise proven by the adolescent accused ofcrime; and iii) mandatory, in which waiver is required if certain statutoryrequirements are met

he most common and oldest form of transfer laws in the United States are thosethat allow juvenile courts to relinquish their jurisdiction over cases ofchildren accused of committing crimes, and thereby send those cases to theadult courts. These judicial acts are referred to as waivers, because throughthem the judge is waiving the protections of the juvenile justice system.Waivers are based on varying criteria that are established by law or formalguidelines. Such decisions are ultimately made by juvenile court judges,based largely on a determination of whether or not the child accused of acrime is considered to be “receptive” to treatment offered in the juvenilejustice system

Data reported by a small number of states in 2007 indicates that nearly14,000 youth were transferred to adult courts in that year through judicialand non-judicial transfer mechanisms

Another set of legislative provisions that causes a significant number ofchildren and adolescents to be tried in the adult criminal justice system istransfer laws, which consist of a) judicial discretionary waivers, b)prosecutorial discretion or concurrent jurisdiction, and c) statutory orlegislative exclusion provisions. 85 Most states have multiple transfermechanisms for persons below 18 years of age, based on these three maincategories.67. The IACHR observes that, in accordance to available data, in 21 U.S. statesand in the District of Columbia there is no specified minimum age ofeligibility for the transfer of children to adult courts, and in 26 other states,children as young as 10 to 14 years of age are considered eligible to betransferred to the adult criminal justice system.

According to the information published by the Department of Justice, in2011, juvenile jurisdiction ended at age 16 in ten states (Georgia, Illinois,Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, SouthCarolina, Texas, and Wisconsin), and at 15 years of age in three states (NewYork, Connecticut, and North Carolina), while in all other states and in theDistrict of Columbia, juvenile court eligibility extended to 17 years of age orabove.

One of the main bases for children to enter the adult criminal justice systemin the United States is legislation that limits the jurisdiction of juvenile courtsto exclude all 17 year olds and in some cases 16 year olds. This results insuch children automatically being tried as adults in all circumstances, whileinternational law sets the age of adulthood at least at 18 years.74 Accordingto information received by the Commission, the U.S. does not track thenumber of youth who are tried as adults as a result of these jurisdictionrestrictions.

According to information received by the Commission, there are three mainways in which children and adolescents enter the adult criminal justicesystem in the United States, based on the particular legislation of each state.First, by way of laws that grant jurisdiction to the adult criminal courts forpersons under 18 years of age. Second, through laws that allow for a child’scase to be transferred from the juvenile system to the adult system. Third, asa result of hybrid sentencing laws that operate between the jurisdictions ofthe adult and juvenile systems, as well as other provisions with similar effect,such as “once an adult, always an adult” laws

In 2010, an estimated 139,000 children were housed in adultprisons and jails across the country

Notwithstanding this overall decrease in violent crime committed byyouthful offenders, as a result of an increasingly harsh national responsetoward adolescents over the past three decades, it became increasinglycommon for youth to receive severe punishments designed for adults. Thenumber of youth placed in adult prisons and jails more than tripled in the

Subsequently, many U.S. states have followed the punitive approach of thisfederal law in their handling of criminal justice, enacting or expandingtransfer provisions in their criminal justice legislation that allow youth to betried as adults.58 Between 1992 and 1995, laws that expanded such transferprovisions were passed in 40 states and the District of Columbia.59 By theyear 2000, a child as young as 10 years old could be tried and sentenced asan adult in most states when charged with a serious crime such as murder.Some states went beyond this and did not establish a minimum age at whichchildren could be transferred to the adult criminal justice system

In 1994, a new federal law, the Violent Crime Control and Law EnforcementAct that included some provisions on youth involvement in crime, waspassed. The impetus for this was a perceived increase in both gang violenceand violent crime committed by juveniles. The law allowed children as youngas 13 years of age to be tried as adults in federal courts when they wereaccused of committing certain serious felonies, such as murder, attemptedmurder, and bank robber

During this period, policymakers and media in the United States issuedwarnings about the rise of alleged adolescent “super-predators,” 56instigating fear across the country that adolescents bearing arms werecommitting violent crimes without suffering real consequences, due to themore lenient treatment of youth in the juvenile justice systems

otwithstanding the progress that was made in this earlier era, the IACHRobserves with concern that these advances were followed by a nationalmovement toward increasingly harsh and punitive responses to an increasein crime rates at the time, including violent crimes allegedly committed byadolescents. This resulted in the enactment of regressive federal and state-level measures between 1980 and 2000 that allowed children to be treatedas adults and excluded them from the rehabilitative juvenile justice system

Moreover, significant progress at the national level was achieved in 1974,with the enactment of the Juvenile Justice and Delinquency Prevention Act.This federal legislation governs the U.S. juvenile justice system, and amongother things, requires the separation of youth from adults in custody, and thedeinstitutionalization of “status offenders.” The Act provides funding tothose states that comply with federal protections for youth accused ofcommitting crimes, in order to ensure appropriate care for such youth andensure that they are treated as youth in the justice system. The Act defines ajuvenile as "a person who has not attained his eighteenth birthday, or for thepurpose of proceedings and disposition under [the Act] for an alleged act ofjuvenile delinquency, a person who has not attained his twenty-firstbirthday."54 However, state law does not necessarily follow the same criteria.The Act has been reauthorized over the years and amended

The IACHR reminds the United States that, pursuant to international humanrights law, a specialized system of juvenile justice must be in place for youthaccused of committing crimes, and the rules and regulations of such juvenilejustice system must be fully applied, without discrimination, to all personsunder the age of 18 years.46 All adolescents who stand accused of a crime areentitled to be tried in a special juvenile justice system, separate from thecriminal justice system in which adults are tried, in order to ensure that theirfundamental rights are afforded due protection and respect, in accordancewith their age and developmental needs

In particular, a series of highly publicized violent incidents created anunfounded hostility in the general public toward, and fear of, what have beenreferred to as "juvenile super-predators." As a result, across the UnitedStates, laws were changed in order to move the youth justice system awayfrom a primarily rehabilitative aim and toward a punitive, “tough-on-crime”response. As a result of this change, youth were increasingly being tried asadults in criminal courts, reflecting a disregard for children’s vulnerablestatus, their need for protection, and the primacy of their best interest

owever, the Commission notes with grave concern that in the 1980s, thisbegan to change. By the year 1990, many states across the U.S. had passedhighly regressive changes to their legislation and policy with regard to youthinvolved in the justice system. The changes varied in the details of theirimplementation, but the broad theme was the denial of access torehabilitative juvenile justice systems, and consequent mandatoryprocessing of juveniles in the more punitive adult systems. This denial wasbased on automatic and fixed criteria, such as the age of the accused and/orthe seriousness of the offense, without regard to the case-specificconsiderations that can normally be taken into account by juvenile courts inthe exercise of their discretion over sentencing. These changes that tookplace across the U.S. were largely in response to public concern over highcrime rates and the supposed involvement of youth in violent crimes

Juvenile justice systems in U.S. states were further developed between 1970and 1980, with the implementation of community-based programs,diversion, and de-institutionalization. Almost every juvenile justice systemincluded a mechanism through which judges could relinquish thei

The United States has played an important role in promoting andestablishing a specialized approach to youth within the criminal justicesystem, with the aim of rehabilitating, rather than simply punishing, youthwho are convicted of a crime. The world’s first juvenile court division wascreated in the U.S state of Illinois in 1899, and within 25 years all but two ofthe states had followed suit and established similar juvenile court systems.3729. In this regard, it has long been acknowledged in the various criminal justicesystems of the U.S. that children are different from adults and require specialtreatment with regard to their criminal responsibility for crimes committed,and in particular, that it is necessary to prioritize the rehabilitation of childoffenders over the goals of retribution and incarceration (i.e., prevention offurther harm to the general population) that are more central to the adultcriminal justice systems in the U.S.38 As established by the Supreme Court in1966, “[t]he Juvenile Court is theoretically engaged in determining the needsof the child and of society rather than adjudicating criminal conduct. Theobjectives are to provide measures of guidance and rehabilitation for thechild and protection for society, not to fix criminal responsibility, guilt andpunishment.”

It has to be repeated: the choice of method or level for comparison will mainlydepend on the research question(s) guiding the research project.Different aims often imply different methods, be it not always.

types’ makes it possible to rank those legal concepts, rules, institutions, ona scale according to the degree of fitting with the core characteristics of the‘ideal type’.– The structural method is focusing on the framework of the law or of the ele-ments reconstructed through an analytical approach. This is not the structureof each of the compared legal systems, but just one way of looking at them,which proves to be revealing for answering the research question.– The historical method will almost always be a necessary part of the methodsused, for understanding differences and commonalities among legal systemsand for determining their degree of belonging to a deeply rooted tradition orrather to accidental historical events.– The law-in-context method has inevitably also a historical dimension butfocuses on the law’s current societal context, including, where appropriate,culture, economy, psychology, religion, etc. It studies a much broader contextwhen compared to the functional or analytical method and implies the use of(results from) other disciplines.

The comparatist disposes of a pluralist toolbox containing the following method-ological opportunities:– The functional method is looking at the actual societal problem (e.g., a trainaccident) and the way this is solved in different jurisdictions (most notablycompensating the victims for their damage) along similar or different roads(e.g., contract liability or tort liability) and with similar or different results(e.g., compensation or not for pure economic loss). The focus is on the societalproblem and the actual result of the legal approach to that problem.– The analytical method is analysing (complex) legal concepts and rules (e.g.,ownership) in different legal systems in such a way that common parts anddifferences are detected (claims, liberties, competences, etc.). The use of ‘ideal

Instead of looking for tertia comparationis, legal comparatists should, indeed,through their research, develop such a comparative second-order language.40Actually, what is presented as tertium comparationis is sometimes in fact such asecond-order language

Above, when discussing the methods of comparative legal research, we have seenhow, in most cases, comparatists focusing on methodology have tried to developsuch a, relatively neutral, second-order language describing the concepts thatconstitute the different legal systems, even if in applied comparative researchmostly first-order languages are used

Actually, what has initially been a well-founded warning against biases in com-parative research has, erroneously, been perceived as part of comparative method.There is no reason why comparative research should be limited to legal phenom-ena with common characteristics or to legal systems ‘at the same stage of devel-opment’, as Esin Örücü has rightly claimed (Örücü 2006, p. 443). As comparativelaw has largely developed with the aim of improving one’s own legal system, it isunderstandable that this kind of research required some level of comparability inorder to be useful. However, comparative research carried out with other aims,such as understanding quite different legal cultures, cannot and should not usesuch conditions

In order to compare, it has been emphasized, we need a tertium comparationis. 38 Weshould not look at a foreign legal system with the eyes and doctrinal framework ofour own legal system, but try to transcend it, by using external ‘neutral’ elementsfor comparing legal systems: ‘the comparatist must eradicate the preconceptionsof his native legal system’

ere, surface levelcomparative law inevitably turns into deep level comparative law and becomesmainly legal anthropology

A more thorough look at superficial similarities and/or differences among legalsystems may reveal that adequate comparison has, indeed, to take place at adeeper level of doctrinal construction or paradigmatic framework. Actually, ErnstRabel considered it to be the aim of comparative law to go to that deeper level inorder to get a true understanding of the law (Rabel 1924).Example 1: International private law rules on jurisdictionRalf Michaels has shown how not only rules are different in the US and Europeas to deciding which courts have jurisdiction when several countries may beinvolved, but moreover‘they think differently about how to apply jurisdiction and they even thinkdifferently about what jurisdiction is. Americans and Europeans disagree onthe answers because they disagree on the relevant questions’ (Michaels 2006,p. 2011). 33For example,‘although territoriality and state boundaries are central to both U.S. andEuropean thinking about jurisdiction, they play different roles in each para-digm. In the domestic U.S. paradigm, the role of boundaries is one of delimi-tation. The power of a court goes to the state’s boundaries, not beyond them.It is fair to force a defendant into a court in the state with minimum contacts,but not beyond its boundaries. (...) By contrast, the role of state boundaries inthe international European paradigm is one of allocation: the locus of an eventor a party defines the place that has jurisdiction in a multilateral fashion’(Michaels 2006, p. 1058).This means that an adequate comparison has to take place at the level of theunderlying paradigms and not only at the levels of legislation or case law.

Indeed, law in action may be (quite) different from law in the books. Most lawyersare well aware of this conclusion. That is why a comparison at the level of ruleshas to be complemented by, or in some cases started with, a comparison of judicialdecisions. In some cases, such as very recent legislation or unavailability of othersources in a language one has access to, comparison will be limited to the level oflegislation.

Also, located at a deeper level are comparisons as to legal culture 30 , legal argu-mentation (Bomhoff 2012), judicial decision making (Lasser 2004), styles of legalwriting, diverging approaches to legal sources (MacCormick & Summers 1997;Komarek 2012) and to statutory interpretation (MacCormick & Summers 1991)(e.g., the use of travaux préparatoires), the role of legal doctrine, the respectiverole of the legal professions (e.g., Van Caenegem 1987), the role of form in law inrelation to substance (Atiyah & Summers 1987). Such comparative research hasa strong theoretical dimension and tries to draw the background against whichlegal systems are understood and applied by those working in those legal cultures.The methods used for comparison at this level will mainly be analytical and his-torical, often revealing hidden world views, which strongly orientate the attitudetowards the law

The most classical one is the distinction between macro and micro level, compar-ing legal systems as distinguished from comparing more concrete rules and legalsolutions to societal problems in different legal system

The common-core method looks for commonalities and differences between legalsystems in view of the question to what extent harmonization on certain pointswould be possible among the compared legal systems or the question how a Euro-pean rule, for instance, could be interpreted in such a way that it fits best thedifferent national traditions.

The common-core method is largely based on the functional method, to someextent combined with the law-in-context method. What is specific to the com-mon-core method is that one looks for a common core in view of the (possible)harmonization of a certain part of the law. I

the ‘Trento Common Core Project’ was set upin Italy by Ugo Mattei and Mauro Bussani. It was more ambitious: ‘The ambitionof the work in which we are engaged here in Trento is a considerable broadeningof the scope of the Cornell project. We are seeking the common core of the bulkof European private law, as divided in the general categories of contract, tort andproperty.’

concepts, legal rules and legal institutions all societies had in common

Example: In contract interpretation it looks like England, France and Germanyare taking rather diverging positions as to what determines the meaning of thecontract. In England it is (only) the text of the agreement that counts, in Francethe subjective will of the contracting parties, and in Germany an ‘objectivated’will (what each party could reasonably have understood the intention of the othercontracting party was). A historical research, however, reveals that the (French)subjective will theory was dominant in Germany in the second half of nineteenthcentury and obtained a central position in English law in about the same period,whilst a more objective approach to interpretation became popular among Frenchlawyers by the end of eighteenth century. Actually, each of those approaches tocontract law happens to have held a strong position in each of those countriesat some time in history. It is mainly a matter of historical coincidence, which‘explains’ the differences among the compared legal systems in a more recentpast