2023 VERSION
CMY2604
Dealing with Young Offenders
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dealing-with-young-offenders-a
,THEME 1: THE DEVELOPMENT OF
JUVENILE JUSTICE
1. THE HISTORY AND DEVELOPMENT OF JUVENILE JUSTICE
1.1. ANTIQUITY
❖ Oldest legal code: code of Hammurabi – 2270 BC. If a son strikes his father, his hands shall be cut
off.
❖ Mosaic code: Old Testament. Basis for US legal system.
❖ Ancient Hebrews (600-400BC were first to make tripartite division of childhood: infancy (0-6y),
puberty (males: 7-13y; females: 7-12y), and pre-adulthood (from end of puberty to 20y).
❖ Codification of Roman law (450BC): Law of the Twelve Tables. At the age of puberty, children are
capable of criminal intent. 6y olds were hanged/burned at the stake.
❖ English criminal law recognised status of child.
❖ Anglo-Saxon period (AD449-1066): death sentence included youth. Age of majority: 10 or 12.
1.2. MIDDLE AGES
❖ Swaddling and wet nursing, disease, malnutrition, infanticide, child abandonment contribute to
the death of children.
❖ Few children received education. Sons worked the land. Daughters were a drain on the family.
❖ Boys as young as 7 were apprenticed.
1.3. RENAISSANCE
❖ Renewed interest in learning – children were educated.
❖ Protestant Reformation affected the handling and treatment of children with respect to their
moral training, education and discipline.
❖ Need for supervision of and attention to children was acknowledged.
❖ USA: families influenced by urbanisation. Children were increasingly placed in schools.
1.4. COLONIAL PERIOD
❖ 1636-1823 in USA. Family: primary source of social control of children.
❖ Public dunking and whipping, expulsion from community, capital punishment, fines for parents.
❖ Puritan (English Protestants): training and discipline.
❖ 1646 Massachusetts Stubborn Child Law: if the family couldn’t control child, fines given or child
removed. Workhouse was a possibility for stubborn children.
❖ Execution sermons were used as a warning against sin.
❖ 17th and 18th centuries in England:
o Nuclear family structure became dominant. Children lived with parents, received
education, were disciplined for academic and moral lapses.
o Apprenticeship movement.
o Chancery courts established to protect welfare of children. Children were under the
collective protection of the King, who acted as ‘parens patriae’ (father of the nation).
o Holland and England influenced SA legal system. Corporal punishment and deportation
were common.
, o Chamber of Justice acted as mediator where children had disobeyed their parents.
Children who disobeyed were punished as slaves were.
1.5. INDUSTRIALISATION
❖ Migration from farms to cities.
❖ Children became cheap labour.
❖ Juvenile lawbreakers were arrested, housed, tried and imprisoned with adults, resulting in sexual
exploitation and furthering of criminal schooling.
❖ House of Refuge: removed children from prison and established places for homeless youths.
Obedience and conformity achieved through strict discipline.
❖ First juvenile court in the world in Cook County, Illinois, USA.
❖ “Child savers” promoted idea of separate justice system for children.
❖ School became compulsory for all youths aged 6-16.
❖ Common law (19th century): children under 7y “not guilty of a felony” because they could not
differentiate between right and wrong. 7-14y old: not guilty of a felony, unless the court could find
that he or she could discern between right and wrong. Older than 14y: responsible for actions.
❖ Youths were hanged and imprisoned along with adults.
❖ Growing interest in humanitarian approach.
❖ His Lordship L Meijer made a plea in 1897 that youths should be separated and that special
institutions be made available for them. 1902: Anglo-Boer War ends, former legislation replaced by
British Laws.
❖ Historically, (SA) age was a mitigating factor in relation to criminal responsibility and sentencing.
❖ Child-saving movement played a role in establishment of reform schools and, later, industrial
schools.
❖ Attorney General of the Cape Colony, William Porter, left 20 000 pounds in his will for the
establishment of a reformatory for juvenile transgressors; led to the Juvenile Reformatory Act in
1879, and the Porter Reformatory School in Cape Town. Open to all races.
❖ 1909: Houtpoort Reformatory established in Heidelberg, Transvaal.
❖ First industrial school established by government in Cape Town in 1894.
❖ Industrial schools aimed at poor whites.
❖ Children’s Act of 1937: closed court proceedings; assistance from parents/guardians; additional
sentencing measures such as referral to a reformatory.
❖ 1948: National Party came to power. Corporal punishment and imprisonment used to discipline
children.
1.6. 1990 – 2005
❖ By the early 1990s the state carried out more than 30 000 whippings per year.
❖ 1995: S v Williams and Others. Whippings are declared unconstitutional (cruel and unusual
punishment).
❖ According to the SA Constitution, a child has the right not to be detained, except as a last resort
and can only be detained for a short period of time.
1.7. DEVELOPMENTS IN JUVENILE LAW SINCE 2005
❖ 1 March 2005: US Supreme Court ruled that it was unconstitutional to execute offenders who were
under the age of 18.
❖ Life imprisonment without parole is prohibited as a sentence for a child by the United Nations
Convention on the Rights of the Child.
