Transcript Local Legislation and Child and Youth Welfare and

International Instruments
on Juvenile Justice
The New Millennium
“One of the most remarkable
findings in Neuro-Biology of
the last decade is the
EXTENT OF CHANGE
that can occur in the
adolescent brain.”
National Research Council
Forum on Adolescence,
1999.
Neocortex
Abstract Thought
Concrete Thought
Affiliation
"Attachment"
Limbic
Sexual Behavior
Emotional Reactivity
Motor Regulation
Diencephalon
"Arousal"
Appetite/Satiety
Sleep
Brainstem
Blood Pressure
Heart Rate
Body Temperature
Courtesy of Bruce Perry, M.D.,
Ph.D.
C
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E
X
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Y
The Teen Brain
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The brain of
adolescents are not
yet mature
Both gray and white
matter undergo
extensive structural
changes well past
puberty
Functions of the Neo-cortex
(Last part of the brain to develop)
Planning
 Reasoning
 Impulse Control
 Thinking Ahead
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Regulation of
Emotions
 Learning from
Experience
 Weighing of risks
and rewards
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The Adolescent Brain
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Use an alternative part of the
brain
(amygdala- seat of
emotions)
Poor control
increase in impulsivity
Casey, BJ, Getz, S, Galvan, A. “The Adolescent Brain. Developmental Review 28 (2008) 62-77
“Basic intellectual abilities reach adult
levels (around 16 years) before the process of
psycho-social maturation is complete.”
Immaturity
GAP
Steinberg (2008)
Dev Review 28; 88-106
The Adolescent
BrainImpulsive reward-seeking
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behavior (short-term)
Susceptibility to peer pressure
(peak at 14 years) e.g. commit
crimes together with peers.
Poor decision-makinginexperience, minimal
consideration of negative
consequences, emotionality
Toxic Stress Damages Brain
Architecture
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•
Excessive and repeated stress
causes the release of chemicals
that impair cell growth and interfere
with the formation of healthy neural
circuits in the brain
Healthy brain
Toxic stress can damage the
brain's stress response system and
contribute to premature ageing of
the body
Abused brain
Predictors of subsequent juvenile offending of maltreated children
At home
Out of home placement
Non neglect maltreatment
Neglect maltreatment
Non-Physical
Maltreatment
Physical Maltreatment
Non-Indigenous
Indigenous
Female
Male
0
5
10
15
20
25
30
35
40
45
Per cent of subsequent offenders
SOURCE: Stewart, A., Dennison, S. & Waterson, E. 2002, “Pathways from Child Maltreatment to Juvenile Offending”, Trends and
Issues in Crime and Criminal Justice, no. 241, Australian Institute of Criminology, Canberra.
Full report available on AIC web site: http://www.aic.gov.au/publlications/tandi/ti241.pdf
Conventions
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Convention on the Rights of the Child
(CRC)
International Covenant on Civil and
Political Rights (ICCPR)
Convention against Torture (CAT)
Rules and Guidelines
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UN Standard Minimum Rules for the
Treatment of Prisoners
UN Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing
Rules)
UN Guidelines for the Prevention of
Juvenile Delinquency (the Riyadh
Guidelines)
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UN Rules for the Protection of Juveniles
Deprived of their Liberty (the Havana
Rules)
Guidelines for Action on Children in the
Criminal Justice System (the Vienna
Guidelines)
United Nations Rules for the Treatment
of Women Prisoners and Non-custodial
Measures for Women Offenders (the
Bangkok Rules)
CRC General Comments
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General Comment No. 10 on children’s
rights in juvenile justice
General Comment No. 13 on the rights of
the child to freedom from all violence
CRC
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Article 37 - protection from torture
Article 39 - rehabilitation and social
reintegration of children
Article 40 - administration of juvenile
justice
4 Principles: Survival & Development,
Nondiscrimination, Best interests, Child
participation
Riyadh Guidelines
UN Standards for the Prevention of Juvenile Delinquency
(1990)
• Prevention is for all children, not only child
offenders
• Adopt a child-centered orientation and
favour preventative programmes that focus
on the well-being and development of
children
• Call for the decriminalization of status
offences
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The Beijing Rules (UN Standard Minimum Rules
for the Administration of JJ, 1985)
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Set standards for the administration of
juvenile justice
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Promote a separate and specialized system
of juvenile justice
Beijing Rules: 6 Parts
Part 1: Fundamental principles
Part 2: Investigation and Prosecution
Part 3: Adjudication and Disposition
Part 4: Non-institutional treatment
Part 5: Institutional treatment
Part 6: Research, planning, policy
formulation and evaluation
Beijing Rules: Fundamental
Principles
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Encourages fair and humane juvenile justice systems
Emphasizes the well-being of the child
The reaction of the authorities is proportionate to the
circumstances of the offender as well as the offence
Proceedings should be conducted in the best
interests of the child
The use of diversion (with child’s consent) to
appropriate community programmes
The use of deprivation of liberty as a measure of last
resort and for the shortest period of time
Beijing Rules:
Investigation and Prosecution
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Notification of parents or guardians without undue
delay
Judicial consideration of release without undue
delay
Respect for the legal status of the child at all times
Consideration of disposal of the case without
recourse to formal hearings
Referral to the community or other services requires
consent of the child or of parents or guardians
Provision for temporary supervision and guidance,
restitution and compensation of victims
Beijing Rules:
Diversion
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Diversion may be used at any time during
the decision making process
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Importance of obtaining the consent of the
child or his or her parent or guardian to the
recommended diversionary process
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At any stage of criminal proceedings
Benefits of Diversion
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Rights perspective
Economic perspective
Child development
Public safety
Victim impact
Community
Professionalism/job satisfaction
UNICEF, 2009
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Evidence from a range of project reviews, evaluations and metaanalyses show that such programmes can reduce offending by up to
70%, depending on the quality of the programme.
Some studies show that even poor quality programmes perform no
worse than detention in terms of recidivism, and often better,
although care must be taken to avoid 'net-widening'.
However, the greatest gains are to be made with high quality, welltargeted, well-resourced and well-supported programmes which are
child rights-based.
From a random selection of 44 studies, evaluations or metaanalyses of diversion and alternatives programmes, 31.8% showed
evidence of ‘significant’ reduced recidivism, 22.7% showed evidence
of ‘somewhat’ reduced recidivism, 11.4% showed no evidence of
reduced recidivism, 2.3% cited programmes in general which do not
have an effect in this area, and 31.8% showed inconclusive or
mixed findings.
Beijing Rules:
Adjudication and Disposition
• Fair and just trial (due process rights)
• Importance of finding a solution that will reflect
proportionality between the offence, the interests of the
child and of society
• The background and circumstances in which the child
is living or the conditions under which the offence has
been committed shall be properly investigated so as to
facilitate judicious adjudication of the case
wo 9
Beijing Rules:
Deprivation of Liberty
•Detention pending trial should be used only as a
measure of last resort and for the shortest possible
period of time
•Detention pending trial should wherever possible be
replaced by alternative measures
•Children in detention pending trial shall be kept
separate from adults
•While in custody, children shall receive care, protection
and all necessary individual assistance that they may
require in view of their age, gender...
Havana Rules (The UN Rules for the
Protection of Juveniles Deprived of their
Liberty, 1990)
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Standards applicable when a child (any person
under the age of 18) is confined to any institution
or facility by order of any judicial, administrative
or other public authority
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Deprivation of liberty must be a last resort, for
the shortest possible period of time, and limited
to exceptional cases
Where deprivation of liberty is unavoidable, the
following conditions should be fulfilled:
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Priority should be given to a speedy trial to avoid
unnecessarily lengthy detention periods
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Children should not be detained without a valid
commitment order
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Small, open facilities should be established with
minimal security measures
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Deprivation of liberty should only be in facilities that
guarantee meaningful activities and programmes
promoting the health, self-respect and responsibility
of children
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Food, clean drinking water and bedding must be
available; clothing should be suitable for the climate
and medical care should be adequate
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Contact with family members and children should be
permitted
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Education should take place in the community and
children should have the opportunity to work within the
community
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Juvenile justice personnel should receive appropriate
training
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Qualified independent inspectors should conduct
regular inspections
The UN Minimum Rules for Non-Custodial
Measures: the ‘Tokyo Rules’ (1990)
Encourage the development of non-custodial
measures at pre-trial, trial and sentencing stages
for all, including children, and cover post trial issues
such as:
 Verbal sanctions such as admonition, reprimand
and warning
 Conditional discharge
 Status penalties
 Economic sanctions and monetary penalties such
as fines and day-fines
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The UN Minimum Rules for Non-Custodial
Measures: the ‘Tokyo Rules’ (1990)
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Confiscation or an expropriation order
Suspended or deferred sentence
Probation and judicial supervision
Community service order
Referral to an attendance centre
House arrest
Any other mode of non-institutional treatment
Some combination of the measures listed above
The Standard Minimum Rules for the
Treatment of Prisoners
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Separation of child prisoners from adults
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Guidance on the treatment of prisoners
and the management of institutions
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Vienna Guidelines (UN Guidelines for Action on Children in the Criminal
Justice System,1997)
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Implement the CRC and to pursue the
goals therein in the administration of
juvenile justice, as well as to use and
apply the UN standards and norms ;
Facilitate the provision of assistance to
States parties for the effective
implementation of the CRC and related
instruments.
Vienna Guidelines
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Effective birth registration systems
Comprehensive child-centred juvenile
justice policy and process
Independent expert should review
existing and proposed juvenile justice laws
and their impact on children
No child who is under the legal age of
criminal responsibility should be subject to
criminal charges;
Vienna Guidelines
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Juvenile courts and special procedures
Diversion or other alternative initiatives
Placement of children in closed institutions
should be reduced.
An independent body to monitor and
report regularly on conditions in custodial
facilities should be established
Who’s to Blame?
We read in the papers and hear on the air
Of killing and stealing and crime everywhere
We sigh and say as we notice the trend,
This young generation where will it end?
But can we be sure it’s their fault alone
Are we less guilty who place in their way
Too many things that lead them astray
Too much money, too much idle time
Too many movies of passion and crime
Too many books not fit to read
Too much evil in what they hear and said
Too many children encouraged to roam
Too many parents who won’t stay home
Kids don’t make the movies,
They don’t write the books
They don’t paint gay pictures
of gangsters and crooks
They don’t make the liquor,
and they don’t run the bars
They don’t make the laws
and they don’t make the cars
They don’t make the drugs that muddle the brain
That’s done by older folks greedy for gain
Delinquent teenagers oh how we condemn
For the sins of the nation and blame it on them
By the laws of the blameless
“Someone” made known
Who is there among us to cast the first stone
For in some many cases, it’s sad but it’s true
The title delinquent fits older folks too
Written by Judge Angelo D. Malandra, Juvenile and Domestic Relations Court,
Camden Country, New Jersey, USA