HaCKeRz Kr0nlcKLeZ 1/HaCKeRz Kr0nlcKLeZ.iso/anarchy/essays/schoolsucks/juveref.txt

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Law
Juvenile Justice Reform

    Massachusetts Juvenile Justice Reform: A Step in the Wrong Direction

Juvenile Justice


THESIS STATEMENT: The Great and General Court of Massachusetts has erred
in reforming the juvenile justice system by implementing policies and
procedures that will harm juveniles and place society at risk.

    On July 23, 1995, an intruder brutally attacked and stabbed Janet
Downing approximately 100 times in her Somerville home.  The revolting
Downing murder and ensuing arrest of Edward O'Brien Jr., a 15-year-old
juvenile whom prosecutors say committed the heinous crime, sent
shockwaves through the state.  When Somerville District Court Judge Paul
P. Hefferman ruled that the Commonwealth try Mr. O'Brien as a juvenile,
those shockwaves grew in intensity, and the citizens of Massachusetts,
fed up with increasing youth violence and perceptions of an ineffective
juvenile justice system, demanded the enactment of tough new laws to
deal with repeat and violent juvenile offenders.  The Great and General
Court of Massachusetts headed these demands for reform of the juvenile
justice system and enacted legislation that, among other things,
abolishes the trial de novo system in the juvenile courts, requires the
trial of juveniles charged with murder, manslaughter, aggravated rape,
forcible rape of a child, kidnaping, assault with intent to rob or
murder and armed burglary in adult court and permits prosecutors to open
to the public juvenile proceedings when they seek an adult sentence.
Although proponents tout these measures as a sagacious solution for the
vexatious problem of juvenile delinquency, abolishing the trial de novo
system, providing for automatic adult trials and opening juvenile
proceedings to the public when prosecutors seek an adult sentence works
to the detriment, not the benefit, of juveniles and society.  Therefore,
the policy makers of Massachusetts should repeal most sections of the
Juvenile Justice Reform Act and develop other policies to deal with the
rising problem of juvenile crime.

I. A SINGLE TRIAL SYSTEM PREVENTS COURTS FROM PROVIDING RAPID ASSISTANCE
TO JUVENILES IN NEED, DOES LITTLE TO SERVE JUDICIAL ECONOMY AND PLACES A
SIMILAR BURDEN AS THE DE NOVO SYSTEM ON VICTIMS AND WITNESSES.

    Proponents of a single trial system for juveniles argue that the trial
de novo system wastes judicial resources by giving defendants a second
bite at the apple and traumatizes victims and witnesses by forcing them
to testify at two proceedings.  However, these proponents fail to
acknowledge that the de novo system allows judges to quickly provide
juveniles with the rehabilitative help they need.  The proponents,
unsurprisingly, also fail to acknowledge that a single trial system may
place a greater burden on judicial resources and a similar burden on
victims and witnesses.
    The de novo system benefits juveniles by encouraging bench trials,
which frequently result in the swift administration of rehabilitative
help.  For many juveniles, delinquency is a reaction to a variety of
situational stressors.  Statistics indicate that the vast majority of
juvenile delinquents are exposed to abuse and neglect, harsh or erratic
parenting, and socioeconomic deprivation.  Experts believe that if the
juvenile justice system is to rehabilitate juveniles and make them
productive members of our society, it must address these problems as
swiftly as possible.  A de novo system encourages juveniles, many of
whom want judicial help, to request a bench trial.  Likewise, under a de
novo system, defense attorneys are encouraged to recommend an initial
bench trial because the court's decision does not bind clients if it is
not in their interest.   On the other hand, a single trial system
discourages juveniles and defense attorneys from requesting a bench
trial.   Because jury trials are more lengthy than bench trials and may
drag out for over a year, the current policy of encouraging juveniles to
seek an initial jury trial denies them the rehabilitative help they need
for a significant period of time.  Therefore, the de novo system is the
preferred choice when dealing with juveniles because it encourages bench
trials and, concomitantly, the swift administration of rehabilitative
help.
    As noted earlier, one of the primary arguments for doing away with the
de novo system is that it wastes judicial resources.  However, upon
closer examination one realizes that the de novo system actually
furthers judicial economy.  Under a de novo system, procedural
safeguards can be done away with or relaxed at bench trials without fear
of violating rights of defendants.  Courts have found the elimination of
procedural safeguards at bench trials in a de novo system to be
constitutional because the judiciary will extend all safeguards to the
defendant at a new jury trial if he/she so chooses.  Although no
statistics could be found which indicate the number of defendants
appealing de novo bench trial decision, a court employee estimates that
it was around 3%.  Thus, 97% of juvenile cases were disposed of through
bench trials, which are less costly and time consuming than jury
trials.   While 3% of the cases resulted in two proceedings, the value
obtained from bench trials appears to significantly outweigh the costs
incurred by appeals.  Therefore, the de novo system may actually further
judicial economy more than a single trial system.
     The other primary argument for a single trial system is that making
victims and witnesses testify at two trials is unfair.  The 3% estimate
that the de novo system requires that victims and witnesses testify at
two trials very infrequently.  Furthermore, replacing the de novo system
will not eliminate the need for requiring some victims and witnesses to
testify at two trials. Appellate courts have the power to reverse a
trial court's decision and order a new trial. In cases where the trial
court's decision is reversed, victims and witnesses must testify again.
Given the strong state interest in reforming juveniles, protecting
society and conserving judicial resources and the fact that a one trial
system also requires some victims and witnesses to testify twice, the
burden placed on witnesses and victims by the de novo system cannot be
considered unreasonable.
    In sum, the de novo trial system better suits the needs of juvenile
offenders, society and the court system for several reasons.  First,
under the de novo system, judges can expeditiously provide the
rehabilitative help that juveniles need.  Secondly, the de novo system
does not appear to burden judicial economy.  In fact, despite
proponents' claims to the contrary, the evidence appears to indicate
that a de novo system actually furthers judicial economy.  Finally,
although a slight burden is placed on those victims and witnesses who
are forced to testify at two proceeding, this burden exists in a one
trial system and is outweighed by the strong state interest in
rehabilitating juveniles, protecting society and conserving judicial
resources.

II. AUTOMATICALLY TRYING JUVENILES CHARGED WITH MURDER, MANSLAUGHTER,
AGGRAVATED RAPE, FORCIBLE RAPE OF A CHILD, ASSAULT WITH INTENT TO ROB OR
MURDER AND ARMED ROBBERY CONTRADICTS THE NOTIONS UPON WHICH THE
JUVENILE
JUSTICE SYSTEM WAS FOUNDED AND, ULTIMATELY, PLACES SOCIETY AT RISK.

    Besides eliminating the de novo system, the Juvenile Justice Reform Act
also provides for the automatic trial of juveniles charged with murder,
manslaughter, aggravated rape of a child, assault with intent to rob or
murder and armed robbery in adult court.  The automatic trial provision
is unnecessary in light of new procedures that provide for a post-trial
amenability to rehabilitation determination.  Moreover, automatically
treating certain juveniles as adults goes against the traditional
purposes of the juvenile system, and, ultimately, poses a greater risk
to society when correctional authorities release the offender.
    The provision providing for automatic trial in adult court of juveniles
charged with murder, manslaughter, aggravated rape of a child, assault
with intent to rob or murder and armed robbery in adult court is
unwarranted in light of additional provisions contained within the
Juvenile Justice Reform Act that eliminate pretrial transfer hearings
and replace them with post-trial amenability to rehabilitation
hearings.   Scott Harshbarger, the Attorney General of Massachusetts and
author of the Juvenile Justice Reform Act, states that the automatic
transfer provision is necessary to address the "the time-consuming and
burdensome nature of the transfer hearing process."  In other words, Mr.
Harshbarger advocates treating juveniles as adults in certain cases
because it is too much of a bother to conduct a pretrial hearing to
determine whether the juvenile is amenable to rehabilitation.  Mr.
Harshbarger's position is especially confusing in light of the provision
in the Juvenile Justice Reform Act that supplants pretrial transfer
hearings with post-trial amenability to rehabilitation hearings.  Under
the new system, the legislature has eliminated pretrial transfer
hearings in juvenile court and mandated that the court hold trials
first.  If the juvenile is found guilty at the trial, the court holds a
post trial amenability hearing in conjunction with the sentencing
heating.  Once the court makes a determination as to whether the
juvenile is amenable to rehabilitation, the judge can impose three
possible sentences: (1) an adult sentence; (2) a juvenile sentence; or
(3) commit the juvenile to the Department of Youth Services until he/she
reaches the age of twenty-one.  As the legislature has eliminated the
burdensome nature of the transfer process, Mr. Harshbarger's rationale
for the automatic trial provision makes no sense.  Moreover, the adult
trial provision effectively denies juveniles charged with certain crimes
rehabilitation opportunities and defies common sense by transferring
juveniles out of the juvenile system where an adult sentence may be
imposed by a judge who is familiar with the needs of juveniles to the
adult criminal system where judges are not familiar with the needs of
juveniles.
    In addition to being unnecessary in light of the elimination of
transfer hearings in the juvenile justice system, the automatic trial
provision contradicts the traditional philosophy of the juvenile justice
system.  The fundamental principle upon which the founders based the
juvenile justice system is that juveniles are different from adults and
need different treatment.  Throughout its history, the juvenile justice
system has strived to uphold this principle by providing benevolent and
less formal means than adult courts for dealing with the unique problems
of juvenile offenders.  For instance, juvenile courts typically
subscribed to the philosophy of rehabilitation, rather than punishment,
and closed proceedings to the public to protect juveniles from harmful
stigma.  Massachusetts, in providing for the automatic trial in adult
court of juveniles charged with certain crimes, moves away from the
traditional benevolent, rehabilitative philosophy of the juvenile
justice system and toward a retributive or "just desserts" philosophy.
Critics dismiss this contention, stating a judge in the adult court
still has the authority to impose a juvenile sentence on the offender.
However, given the adult criminal court's goal of punishment and lack of
experience with juveniles, a judge is likely to impose a juvenile
sentence only in the rarest of cases.
    Moving away from the traditional philosophy of the juvenile justice
system by automatically treating certain juveniles as adults increases
their propensity for crime and increases the risk to society.  Studies
indicate that juveniles tried as adults typically do not receive longer
or more severe sentences than those juveniles tried in the juvenile
court.  The studies also suggest that juveniles tried as adults have a
higher rate of recidivism than those juveniles with like profiles who
are charged with similar offenses and tried in the juvenile justice
system.   The higher rate of recidivism for juveniles tried as adults is
likely the result of their being released into society undereducated,
unsocialized, unemployable and in their physical prime.  In other words,
the adult criminal system sets juveniles up for failure by making them
into the very model of what we wish to avoid.  Therefore, if one truly
values public safety, he/she should not support automatic transfers to
adult court for certain juveniles because they will eventually return to
society and, in most cases, to crime.
    To recap, the automatic trial as adult provision contained within the
Juvenile Justice Reform Act is unnecessary, contradicts the traditional
notions of the juvenile justice system and jeopardizes public safety.
The abolishment of transfer hearings and creation of post-trial
amenability hearings has eliminated the need for automatic transfer to a
court.  Additionally, the adult transfer provision counters the
benevolent, rehabilitative philosophy of the juvenile justice system by
shipping juveniles whom society can rehabilitate to the punishment
oriented adult criminal court.  Finally, the policy of treating
juveniles as adults is likely to backfire because they eventually return
to the streets undereducated, unsocialized, unemployable and in their
physical prime, which often results in a return to a life of crime.

III. OPENING JUVENILE PROCEEDINGS WHERE PROSECUTORS SEEK AN ADULT
SENTENCE IS UNFAIR TO JUVENILES WHO RECEIVE JUVENILE SENTENCES AND
RESULTS IN HARMFUL STIGMATIZATION.

     Under the reformed juvenile justice system a prosecutor can seek an
adult sentence for a juvenile via two methods.  The first, called direct
file, permits the prosecutor to file the complaint in adult court.  If
the prosecutor pursues this method, the state tries the youth in adult
court and the proceedings are open to the public.  The second, and more
troublesome method, allows the prosecutor to try the juvenile in
juvenile court and seek an adult sentence there.  These proceedings are
also open to the public and are unfair to juveniles who do not receive
an adult sentence.  Furthermore, opening juvenile proceedings to the
public stigmatizes juveniles as criminals for the rest of their lives.
     The section of the Juvenile Justice Reform Act that allows the opening
of juvenile hearings to the public where an adult sentence is sought
will expose some juveniles to public scrutiny even though they
ultimately receive a juvenile sentence.  Currently, a Massachusetts
prosecutor has the option of opening juvenile proceedings to the public
by seeking an adult sentence.  Although prosecutors seek an adult
sentence, the judge still has the discretion to sentence the offender as
a juvenile after a post-trail amenability to rehabilitation hearing.
Thus, it is entirely possible and probable that a number of cases in
juvenile court which result in a juvenile sentence will be open to
public scrutiny.  Such a system is unfair because it allows prosecutors
to throw open the doors of secrecy in juvenile court even if there is
little chance of an adult sentence being imposed.
    Opening juvenile proceedings to the public also results in juveniles
carrying around the taint of criminality which may lead to recidivism.
Generally, proceedings in juvenile court have been closed to the public
and press to prevent the stigmatization of minors and encourage
rehabilitation.  Allowing prosecutors to open juvenile judicial
proceedings to the public will undermine rehabilitative efforts by
creating a self-perpetuating stigma of delinquency, placing an
accompanying stigma on family members, which could impair the juvenile's
familial relationships, encouraging youths to commit crimes for
publicity or attention and contributing to a deterioration in the
juvenile's interaction with his peers, the educational system and the
surrounding community.  Because prosecutors are frequently unconcerned
with the interests of juveniles and cater to public sentiment, the
decision to open juvenile judicial proceedings should be left in the
hands of an impartial decision maker.
    To summarize, prosecutors should not have the option to open juvenile
proceedings where they seek an adult sentence to the public because it
is unfair to juveniles who receive juvenile sentences and undermines
rehabilitative efforts.  Opening hearings to the public in juvenile
court when the prosecutor seeks an adult sentence will result in some
cases being held subject to public scrutiny even though the judge
imposes a juvenile sentence.  Such an arrangement is unfair to juveniles
who are amenable to rehabilitation in the juvenile system.
Additionally, opening juvenile hearings to the public is likely to
undermine rehabilitative efforts by  creating a self-perpetuating stigma
of delinquency, placing an accompanying stigma on family members, which
could impair the juvenile's familial relationships, encouraging youths
to commit crimes for publicity or attention and contributing to a
deterioration in the juvenile's interaction with his peers, the
educational system and the surrounding community.  Therefore,
prosecutors should not have the power to open juvenile court proceedings
to the public by seeking an adult sentence.

IV. CONCLUSION AND RECOMMENDATIONS

    The Massachusetts Great and General Court, in attempting to reform the
juvenile justice system, has embarked upon a noble and worthwhile
endeavor.  However, the reforms instituted by the legislature are the
product of faulty perceptions and erroneous beliefs rather than informed
policy making.  If the citizens of Massachusetts are truly interested in
changing the juvenile justice system for the better, it is not too late
to petition the legislature to repeal and amend the detrimental sections
of the Juvenile Justice Reform Act.  The citizens of Massachusetts could
also contact their representatives and ask them to introduce new
legislation that benefits both juveniles and society.
    One may wonder that if the Juvenile Justice Reform Act is bad public
policy, what policies should be implemented to reform the juvenile
justice system.  Perhaps the first step our legislature should take is
to implement preventative programs, such as parenting classes, after
school and summer athletic programs and academic intervention, to keep
juveniles from entering the juvenile justice system in the first place.
Not only are such interventions and programs effective, they are also
cheaper than incarceration.  The average yearly cost of incarcerating a
juvenile ranges from $35,000 to $64,000.  On the other hand, the average
cost of academic intervention is approximately $4,300 and a year at
Harvard costs $30,000.  Therefore, for the amount that it takes to
incarcerate one juvenile for a year, the Commonwealth could prevent
approximately 14 juveniles from entering the juvenile justice system.
    In addition to implementing preventative programs, Massachusetts should
examine the rehabilitation programs and measures of other states and
adopt those that are effective.  Although most states have moved toward
recognizing punishment and accountability as the goals of the juvenile
justice system, no state has entirely eliminated the philosophy of
rehabilitation.  Many of these states have proven rehabilitation
programs and measures in place.  For instance, Utah has founded the
Intermountain Specialized Abuse Treatment Center in Salt Lake City to
rehabilitate juvenile sex offenders, and California has established boot
camps for juvenile delinquents.  By examining the rehabilitation
programs of other states and adopting those that are effective,
Massachusetts could design a new and successful  rehabilitation system
for juveniles.
    A third and more practical possibility is that Massachusetts could
increase funding to its existing juvenile rehabilitation system.  In
1989, the Massachusetts Department of Youth Services, an agency devoted
to helping youths choose productive, crime-free lives, while keeping the
public safe, was named the best juvenile agency in the United States by
the National Council on Crime and Delinquency.  However, several years
later the Department of Youth Services came under fire when several
youths in its custody died, and a youth who was away without leave
participated in a double murder.  Officials at the Department of Youth
Services maintain that the agency has fallen into disarray as a result
of budget cuts and overcrowding.  Thus, by increasing the budget of the
Department of Youth Services, the Commonwealth can restore the agency to
its former prominence and, at the same time, add vitality to the
philosophy of rehabilitation in the juvenile justice system.