CMY2604 - Dealing With Young Offenders Study guide.

CMY2604 - Dealing With Young Offenders Study guide. Learning unit 1 THE HISTORY AND DEVELOPMENT OF CHILD JUSTICE CONTENTS 1.1 Introduction 1.2 The historical development of child justice 1.3 The development of juvenile justice in Africa 1.4 The development of the child justice system in South Africa 1.5 Developments in the child justice system from 1990 until 2005 1.6 Developments in child law since 2005 1.7 Summary and conclusion Self-assessment questions Answers to the self-assessment questions LEARNING OUTCOMES Once you have completed this learning unit, you should be able to • define “child justice” • distinguish between the development of child justice and the evolution of child justice • describe the state of child justice in the following periods: Antiquity, the Middle Ages, the Renaissance, the Colonial period and Industrialisation • understand the development of child justice in Africa • describe the development of child justice in South Africa KEY CONCEPTS Child justice system: the system comprising the police, the courts and correctional services that deals with children in confl ict with the law Child: a person under the age of 18 years Child off enders: people under the age of 18 years who commit crime 1.1 INTRODUCTION The fi eld of child justice has developed from attempts to deal with delinquent and/or neglected children. The birth of the modern child justice system started with the US Supreme Court decision in In re Gault 387 U.S. 1 (1967). In the Gault decision, the Court imposed “due process” requirements on juvenile cases (Robertson 2010:1). The place of 2 the youth off ender in a social and historical context has evolved from an initial position that could be described as harsh, then moved to a more enlightened one and, fi nally, to one of fair evaluation. It is very important to evaluate the youth off ender and the position held by the youth off ender within a specifi c social context. The historical development of the study of the youthful off ender in its entirety should be viewed as a process of discovery, as deviant behaviour always existed, but it was previously ignored or dealt with only on an informal basis, only later becoming a matter of public and legal concern. This learning unit aims to look at the historical development from an African perspective, in particular, but also from an international perspective. In reading the case below, note how the due process rules, which are a requirement for justice, were not applied. In re Gault 387 U.S. 1 (1967) Facts: Gerald (“Jerry”) Gault was a 15 year-old accused of making an obscene telephone call to a neighbour, Mrs. Cook, on June 8, 1964. After Mrs. Cook fi led a complaint, Gault and a friend, Ronald Lewis, were arrested and taken to the Children’s Detention Home. Gault was on probation when he was arrested, after being in the company of another boy who had stolen a wallet from a woman’s purse. At the time of the arrest related to the phone call, Gault’s parents were at work. The arresting offi cer left no notice for them and did not make an eff ort to inform them of their son’s arrest. When Gault’s mother did not fi nd Gault at home, she sent his older brother looking for him. They eventually learned of Gault’s arrest from the family of Ronald Lewis. When Mrs. Gault arrived at the Detention Home, she was told that a hearing was scheduled in juvenile court the following day. The arresting offi cer fi led a petition with the court on the same day of Gault’s initial court hearing. The petition was not served on Gault or his parents. In fact, they did not see the petition until more than two months later, on August 17, 1964, the day of Gerald’s habeas corpus hearing. The June 9 hearing was informal. Not only was Mrs. Cook not present, but no transcript or recording was made, and no one was sworn in prior to testifying. Gault was questioned by the judge and there are confl icting accounts as to what, if anything, Gault admitted. After the hearing, Gault was taken back to the Detention Home. He was detained for another two or three days before being released. When Gault was released, his parents were notifi ed that another hearing was scheduled for June 15, 1964. Mrs. Cook was again not present for the June 15th hearing, despite Mrs. Gault’s request that she be there “so she could see which boy had done the talking, the dirty talking over the phone.” Again, no record was made and there were confl icting accounts regarding any admissions by Gault. At this hearing, the probation offi cers fi led a report listing the charge as lewd phone calls. An adult charged with the same crime would have received a maximum sentence of a $50 fi ne and two months in jail. The report was not disclosed to Gault or his parents. At the conclusion of the hearing, the judge committed Gault to juvenile detention for six years, until he turned 21. Gault’s parents fi led a petition for a writ of habeas corpus, which was dismissed by both the Superior Court of Arizona and the Arizona Supreme Court. The Gaults next sought relief in the Supreme Court of the United 3 CMY2604/1 States. The Court agreed to hear the case to determine the procedural due process rights of a juvenile criminal defendant. Procedure: Lower Courts: The proceedings against Gault were conducted by a judge of the Superior Court of Arizona who was designated by his colleagues to serve as a juvenile court judge. Lower Court Ruling: The juvenile court judge committed Gault to juvenile detention until he attained the age of 21. At that time, no appeal was permitted in juvenile cases by Arizona law; therefore, a habeas petition was fi led in the Supreme Court of Arizona and referred to the Superior Court for a hearing. The Superior Court dismissed the petition, and the Arizona Supreme Court affi rmed. Issue: The Supreme Court agreed to hear the case to determine the procedural rights of a juvenile defendant in delinquency proceedings where there is a possibility of incarceration. Ruling: Reversed and remanded. In its opinion, the Court unanimously overruled Betts v. Brady. Argued: January 15, 1963 Decided: March 18, 1963 Unanimous Decision: Justice Fortas wrote the opinion of the court. Justices Douglas, Clark, and Harlan each wrote concurring opinions. Reasoning: In its opinion, the Court underscored the importance of due process, stating that it “is the primary and indispensable foundation of individual freedom” and that “the procedural rules which have been fashioned from the generality of due process are our best instruments for the distillation and evaluation of essential facts from the confl icting…data that life and our adversary methods present.” In re Gault, 387 U.S. 1, 20 (1967). The Court noted that, had Gault been 18 at the time of his arrest, he would have been aff orded the procedural safeguards available to adults. The Court closely examined the juvenile court system, ultimately determining that, while there are legitimate reasons for treating juveniles and adults diff erently, juveniles facing an adjudication of delinquency and incarceration are entitled to certain procedural safeguards under the Due Process Clause of the Fourteenth Amendment (www. As can be seen clearly from the above, justice was denied through the non-application of the due process rules. The following are some examples of this: • Gault was arrested without being allowed to inform his parents. • His parents were not informed about the hearing or when it would take place. • Neither Gault nor his parents saw the petition that was fi led against him. 4 • On the day of the hearing, the complainant was not present to testify which one of the boys had committed the off ence. • No transcript or recording was made, so it was not clear what Gault had admitted to. • None of the parties was sworn in before testifying. • The probation offi cer’s report was not disclosed to Gault’s parents. • Even though an adult would have received a minimal punishment, Gault was sentenced to juvenile detention for six years. NOTE The importance of the case lies in the fact that the Supreme Court determined that procedural due process rights of a child criminal defendant should be upheld. 1.2 THE HISTORICAL DEVELOPMENT OF CHILD JUSTICE The history and development of child justice is discussed in detail below in relation to the periods of antiquity, the Middle Ages, the Renaissance, the colonial period and industrialisation. 1.2.1 Antiquity Historically, the concept of crime was fi rst recognised in many early societies. In preliterate societies, common custom and tradition (mores and folkways) were the equivalents of law (Siegel 2004:27). The Code of Hammurabi was established by the sixth Babylonian king and is one of the oldest legal codes, dating back to 2270 BC. This law of the Babylonians incorporated all matters related to daily living. It also included laws for specifi ed off ences and punishments. The main principle of the Code focused on the fact that the strong should not injure the weak (Robertson 2010:24). Harsh forms of punishment were handed out. This Code was based on the patriarchal system, where the father was the head of the household. Children who stubbornly defi ed their father/parents were not tolerated. One rule was specifi cally aimed at children who disobeyed their parents: if a son were to strike his father, his hands would be cut off (Regoli & Hewitt 1994:26). The Code also provided for the adoption of children. The adopted children were expected to be loyal towards the adopting father as a payment in return for their new homes (Robertson 2010:25). In the Old Testament of the Bible, the Mosaic Code/Law lists forms of behaviour that were unacceptable, as well as the accompanying punishment. A person was not permitted to steal from another, kill another or curse their parents, as such behaviour was viewed as unacceptable and was punishable with death. These laws made no reference to how to deal with off ending children, however (Bezuidenhout & Joubert 2006:13).