REGIONAL INTERNATIONAL JUVENILE INCARCERATION MODELS AS A BLUEPRINT FOR REHABILITATIVE REFORM OF JUVENILE CRIMINAL JUSTICE SYSTEMS IN THE UNITED STATES.

• Author: Laird, Robert

INTRODUCTION 573 I. BACKGROUND 574 A. Unique Characteristics of Juvenile Agency and Competency 574 1. Dependency and Childhood 575 2. Adolescent Offenders as Limited Legal Actors 576 3. Juvenile Justice and Mental Illness 578 B. Traditional Goals of Juvenile Justice and Theories of Punishment 580 1. Retributivism and Youth Offenders 580 2. Societal Deterrence and Recidivism 581 3. Rehabilitation, Education, Treatment, and Diversion. 583 II. ANALYSIS 584 A. Juvenile Incarceration Models Internationally and in the United States 585 1. The Council of Europe and its Member States 585 a. The Council of Europe and the ECHR 585 b. The United Kingdom 588 c. Scandinavia 589 d. Turkey and "Open Prisons" 591 2. The Organization of American States and Latin America 592 a. The IACHR and the IACtHR 592 b. Mexico and Oaxaca 594 3. The United States 595 B. The Proper Juvenile Incarceration Model for the United States 597 1. A Responsible Minimum Age of Criminal Responsibility 598 2. A Tiered Approach 599 3. Minimizing Incarceration 600 4. Diversion 601 5. Reimagined Juvenile Detention Centers 601 III. CONCLUSION 602 INTRODUCTION

In 1989, the United Nations adopted the Convention on the Rights of the Child (CRC) and it has been adopted with "global support" by almost every country in the world. (1) Article 37(b) of the CRC establishes broad guidelines for the incarceration and detention of juvenile offenders and provides that the "arrest, detention or imprisonment of a child... shall be used only as a measure of last resort and for the shortest appropriate period of time." (2) This has led to the reformation of juvenile justice systems throughout the world, including in Europe and Latin America, (3) as countries have modeled their systems to comply with the CRC. It has also led the European Court of Human Rights (ECHR), the Inter-American Commission on Human Rights (IACHR), and the Inter-American Court of Human Rights (IACtHR) to develop jurisprudence that reflects the rehabilitative goals of juvenile justice and the semi-autonomous nature of adolescents. (4) However, although it played a major role in drafting the CRC, the United States has yet to sign the Convention and has not taken steps to ensure that its juvenile justice system complies with the values enumerated in the CRC. (5) Without pressure to adhere to the standards set forth in the CRC, states within the United States have continued to administer primarily retributive juvenile criminal justice systems that do not embody established international norms.

This Comment argues that the United States has failed to realize the rehabilitative goals of juvenile justice and to take into account the fluid nature and degree of adolescents' autonomy and culpability. Accordingly, the United States should adopt aspects of juvenile justice systems developed in other countries that better embody the rehabilitative ideal. Part 1 of this Comment provides background on juvenile offenders in the criminal justice system. Specifically, Part I.A reviews the unique characteristics of juvenile offenders and explains how adolescents lack full competency to be judged by a criminal proceeding. Subsequently, in Part I.B, this Comment illustrates how a punitive juvenile justice system that is justified by retributive or deterrence theories of punishment is fundamentally inconsistent with the broad consensus in our scientific community that juvenile offenders have diminished agency and competency. Instead, juvenile criminal justice systems should be focused on rehabilitative systems that reflect adolescents' psychical, emotional, and neurological development. In Part II.A, this Comment broadly reviews juvenile justice systems found in Europe, Latin America, and the United States and argues that the United States' juvenile justice systems fail to embody the rehabilitative ideal of juvenile justice. However, regional international courts and their member states provide myriad examples of how to create more rehabilitative juvenile justice systems, and Part II.B of this Comment outlines aspects of several different systems that would fundamentally improve the United States' juvenile criminal systems without sacrificing legitimate public safety interests.

1. BACKGROUND

   Childhood and adolescence are marked by diminished competency and limited agency. These features make juvenile justice systems poorly suited for traditional theories of punishment like retribution or deterrence. Instead, they reinforce the traditional rehabilitative justification of juvenile justice systems. This Part provides background on juvenile offenders in the criminal justice system. Part II.A explores why children and teenagers have limited agency and competency. It also briefly discusses the prevalence of mental illness among juvenile offenders and its implications for agency and competency. Part II.B discusses the impact these characteristics have for traditional theories of punishment and concludes that juvenile justice systems should strive to embody the rehabilitative ideal.

   1. UNIQUE CHARACTERISTICS OF JUVENILE AGENCY AND COMPETENCY

      Juvenile justice models internationally and in the United States broadly treat criminal justice as a binary system; offenders are either adult or juvenile actors. However, children are fundamentally different from teenagers, who are fundamentally different from adults. A binary system fails to take into account that the maturity of some child offenders should completely absolve them of blame, while for many adolescents, their maturity should be a significant mitigating factor. These differences in maturity have substantial implications for whether or not juveniles should be subject to criminal sanctions.

      1. Dependency and Childhood

         Children are different from both adolescents and adults and lack the autonomy to ever justly be subject to criminal justice systems. Children lack the minimum capacity for blameworthiness and punishment. (6) This was recognized at common law (7) and has been codified into statutes domestically and internationally as the criminal age of responsibility. (8) Children's ability to make decisions, to process information, and to consider the consequences of alternative choices is significantly different from both adults and adolescents. (9)

         The transition between childhood and adolescence is marked by improved "intellectual, emotional, behavioral, and interpersonal functioning." (10) A gradual increase in logical reasoning abilities begins at around age eleven and continues through the age of sixteen. This increase in logical reasoning abilities includes the fundamental ability to "comprehend information relevant to a decision and... the ability to use this information logically to make a choice." (12) Simultaneously, focus on one's peer group increases between the ages often and fourteen. (13) As opposed to adolescents, who struggle to create their own independence, children do not consider autonomy a goal and "look to their parents to make decisions for them." (14) The low rate of childhood offenses reflects children's inability to make independent decisions. (15) Criminal offenses committed by children under the age of twelve are almost nonexistent. (16) Children, who have not begun transitioning into adults and who are not autonomous individuals, should not be subject to a criminal justice system that implicitly assumes some degree of autonomy.

      2. Adolescent Offenders as Limited Legal Actors

         In contrast, adolescence is a period of semi-autonomy that bridges the dependency of childhood and the independence of adulthood. (17) It is marked by "puberty, the transition from elementary to secondary school, and the emergence of increasingly sophisticated reasoning abilities." (18)

         Despite adolescents' increased autonomy, modern-day science on juveniles' physical and psychological development makes clear that adolescent offenders should also not be considered full legal actors. (19) Adolescent offenders lack the ability to be fully responsible for their actions because their behavior is "more likely to be shaped by developmental forces that are constitutive of adolescence" than by "subjectively defined preferences and values," as found in adults. (20) Areas of the brain that implicate "long-term planning, the regulation of emotion, and impulse control" are still developing in adolescents. (21) Specifically, large-scale changes to the frontal lobe and prefrontal cortex, areas of the brain that are critical to advanced thinking, occur during an individual's teenage years. (22) As a result, "adolescents, as compared with adults, are more susceptible to influence, less future oriented, less risk averse, and less able to manage their impulses and behavior." (23) Since "these differences likely have a neurobiological basis," (24) juvenile offenders have "greater prospects for reform," (25) "are not as morally reprehensible," (26) and are therefore "less deserving of the most severe punishments" than adults. (27)

         Adolescent offenders are also subject to psychological factors that reduce their culpability. Adolescence is marked by "psychosocial maturation and the maturation of the brain's executive functions." (28) As a result, adolescent offenders are subject to factors that reduce their culpability that are nonexistent in adult offenders. First, adolescents are much more susceptible to peer pressure than adult offenders. (29) Susceptibility to peer pressure increases between the ages of eleven and fourteen and peaks around the ages of fourteen and fifteen. (30) Second, adolescents are also less future-oriented than adults. (31) Adolescents discount the future more heavily, and this leads adolescents to be less risk-averse. (32) Finally, teenagers, as opposed to adults, are more impulsive and less able to control their behavior and choices. (33) They have a greater tendency to moodiness and to seek sensation-arousing situations. (34) Collectively, these factors make...