By: Brittany Wescott ’20
The word “child” forces us to think about a particular class of persons. This class includes any human being below the age of eighteen.[1] Most legal systems around the world have decided this class deserves different treatment than adults when committing offenses because of their psychological immaturity.[2] The values representing this special treatment were enacted on a global scale in 1989 when the United Nations adopted the Convention on the Rights of the Child.[3] “This act brought to fruition a sixty-five year push for formal international legal recognition of the human rights of children.”[4] Both the United States and South Africa are members of the United Nations; however, South Africa has ratified the treaty while the United States has only signed the document even though member states may establish their own juvenile justice system.[5] Despite the lack of ratification on the part of the United States, it still moves towards the shared values of the international community.
Since the founding of the first juvenile court in Illinois in 1899, United States’ philosophy of how to treat child offenders has evolved from treating these offenders much in the same way as adults, to recognizing their inherent need for a different rehabilitative system.[6] Initially, the United States began establishing a type of “half-way” house for at risk youths; these were called Houses of Refuge and attempted to house “poor, destitute and vagrant youth who were deemed by authorities to be on the path towards delinquency.”[7] This was a step away from housing youthful offenders and adults together. Later, efforts made to rehabilitate youths under the doctrine of parens patriae failed. This doctrine gave the juvenile court parental authority over unruly children.[8] However, it was soon found that child offenders needed more than a strong hand, they needed help rehabilitating themselves and reintegrating into society as a productive member. Specifically, in Massachusetts the jurisdiction of the juvenile court includes children in need of services;[9] the care and protection of children;[10] offenders under the age of 18;[11] and neglected and delinquent children.[12]Recently, in 2018 an act was implemented that set out numerous Juvenile Justice reforms. This reform changed the minimum age of criminal liability for a child to twelve years old and under certain circumstances the court can retain jurisdiction until the age of twenty-two.[13] The new measures in Massachusetts have decriminalized several status offense crimes and requires a dismissal of the first minor misdemeanor committed by a juvenile.[14] Finally, restraints should only be used on child offenders in the court room under extreme circumstances.[15]
These new views on the jurisdiction of the Juvenile Court and treatment of child offenders are not so new in South Africa. In 2008, South Africa passed the Child Justice Act which establishes presumptions as to the minimum age of criminal capacity, advocates for arrest or punishment by confinement only for crimes such as theft or fraud, and holds the same belief that restraints should only be used on a child offender under exceptional circumstances.[16]
It is clear that the United States, specifically Massachusetts, and South Africa share values relating to the treatment of juveniles in the world of criminal law. These reforms are moving in the direction of a shared international understanding of how to treat child offenders: break the child out of the cycle, which comes from the understanding that “if a child enters the system at a young age, they will be less likely to break free of the system as they approach adulthood.”[17] However, this reform will only overload diversion programs like South Coast Youth Courts,[18] which now has a larger populace it must try to help.
[1] G.A. Res. 44/25, Convention on the Rights of the Child, Art. 1 (Nov. 20, 1989).
[2] Juvenile, Merriam-Webster, https://www.merriam-webster.com/dictionary/juvenile (last visited Oct. 21, 2019).
[3] 28 Int’l Legal Materials 1448 (1989).
[4] Id.
[5] See G.A. Res. 44/25, supra note 1, Art. 40(3); see also Gene Griffin & Paula Wolff, The Convergence of U.S. Juvenile Justice Policies and the U.N. Convention on the Rights of the Child, B.U. Int’l L.J. (Oct. 29, 2015), http://www.bu.edu/ilj/2015/10/29/the-convergence-of-u-s-juvenile-justice-policies-and-the-u-n-convention-on-the-rights-of-the-child/.
[6] See Juvenile Justice History, Ctr. on Juv. and Crim. Just., http://www.cjcj.org/Education1/Juvenile-Justice-History.html (last visited Nov. 1, 2019).
[7] Id.
[8] Id.; see also Clemens Bartollas, United States, in International Handbook on Juvenile Justice 301, 303 (Donald J. Shoemaker ed., 1996).
[9] Mass. Gen. Laws ch. 119, § 39E (2012).
[10] Mass. Gen. Laws ch. 119, § 24 (2008).
[11] Mass. Gen. Laws ch. 119, § 52 (2018); Mass. Gen. Laws ch. 218, § 60 (1992).
[12] Mass. Gen. Laws ch. 218, § 60 (1992).
[13] Mass. Gen. Laws ch. 119, § 54 (2019); S. Rep. No. 189-2371, at § 73 (2017–2018) (Before the amendment was made to the definition of a delinquent child in M.G.L. ch. 119, § 54, the minimum age a child could be charged with a crime was seven.). See also Mass. Gen. Laws ch. 119, § 52 (2018); Spring 2018 Criminal Justice Reform Bill, Commonwealth of Massachusetts, https://www.mass.gov/files/documents/2018/05/15/FINAL%20CRIMINAL%20JUSTICE_0.pdf (last visited Nov. 1, 2019) [hereinafter Spring 2018 Criminal Justice Reform Bill].
[14] Spring 2018 Criminal Justice Reform Bill; see also Wallace W. v. Commonwealth, 482 Mass. 789, 790 (2019).
[15] Mass. Gen. Laws ch. 119, § 86(b) (2018).
[16] Child Justice Act 75 of 2008, §§ 7, 11, 20, 30, 33 (S. Afr.).
[17] Brianna Hill, Massachusetts Raises Minimum Age of Criminal Responsibility, 39 Child. Legal Rts. J. 168, 168 (2019).
[18] South Coast Youth Courts, http://www.southcoastyouthcourts.org/ (last visited Nov. 22, 2019).
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