Summary CMY2604 - Dealing With Young Offenders Study guide 2022.

CMY2604 - Dealing With Young Offenders Study guide 2022. THE HISTORY AND DEVELOPMENT OF CHILD JUSTICE CONTENTS 1.1 Introduction 1.2 The historical development of child justice 1.3 The development of juvenile justice in Africa 1.4 The development of the child justice system in South Africa 1.5 Developments in the child justice system from 1990 until 2005 1.6 Developments in child law since 2005 1.7 Summary and conclusion Self-assessment questions Answers to the self-assessment questions LEARNING OUTCOMES Once you have completed this learning unit, you should be able to • define “child justice” • distinguish between the development of child justice and the evolution of child justice • describe the state of child justice in the following periods: Antiquity, the Middle Ages, the Renaissance, the Colonial period and Industrialisation • understand the development of child justice in Africa • describe the development of child justice in South Africa KEY CONCEPTS Child justice system: the system comprising the police, the courts and correctional services that deals with children in confl ict with the law Child: a person under the age of 18 years Child off enders: people under the age of 18 years who commit crime 1.1 INTRODUCTION The fi eld of child justice has developed from attempts to deal with delinquent and/or neglected children. The birth of the modern child justice system started with the US Supreme Court decision in In re Gault 387 U.S. 1 (1967). In the Gault decision, the Court imposed “due process” requirements on juvenile cases (Robertson 2010:1). The place of 2 the youth off ender in a social and historical context has evolved from an initial position that could be described as harsh, then moved to a more enlightened one and, fi nally, to one of fair evaluation. It is very important to evaluate the youth off ender and the position held by the youth off ender within a specifi c social context. The historical development of the study of the youthful off ender in its entirety should be viewed as a process of discovery, as deviant behaviour always existed, but it was previously ignored or dealt with only on an informal basis, only later becoming a matter of public and legal concern. This learning unit aims to look at the historical development from an African perspective, in particular, but also from an international perspective. In reading the case below, note how the due process rules, which are a requirement for justice, were not applied. In re Gault 387 U.S. 1 (1967) Facts: Gerald (“Jerry”) Gault was a 15 year-old accused of making an obscene telephone call to a neighbour, Mrs. Cook, on June 8, 1964. After Mrs. Cook fi led a complaint, Gault and a friend, Ronald Lewis, were arrested and taken to the Children’s Detention Home. Gault was on probation when he was arrested, after being in the company of another boy who had stolen a wallet from a woman’s purse. At the time of the arrest related to the phone call, Gault’s parents were at work. The arresting offi cer left no notice for them and did not make an eff ort to inform them of their son’s arrest. When Gault’s mother did not fi nd Gault at home, she sent his older brother looking for him. They eventually learned of Gault’s arrest from the family of Ronald Lewis. When Mrs. Gault arrived at the Detention Home, she was told that a hearing was scheduled in juvenile court the following day. The arresting offi cer fi led a petition with the court on the same day of Gault’s initial court hearing. The petition was not served on Gault or his parents. In fact, they did not see the petition until more than two months later, on August 17, 1964, the day of Gerald’s habeas corpus hearing. The June 9 hearing was informal. Not only was Mrs. Cook not present, but no transcript or recording was made, and no one was sworn in prior to testifying. Gault was questioned by the judge and there are confl icting accounts as to what, if anything, Gault admitted. After the hearing, Gault was taken back to the Detention Home. He was detained for another two or three days before being released. When Gault was released, his parents were notifi ed that another hearing was scheduled for June 15, 1964. Mrs. Cook was again not present for the June 15th hearing, despite Mrs. Gault’s request that she be there “so she could see which boy had done the talking, the dirty talking over the phone.” Again, no record was made and there were confl icting accounts regarding any admissions by Gault. At this hearing, the probation offi cers fi led a report listing the charge as lewd phone calls. An adult charged with the same crime would have received a maximum sentence of a $50 fi ne and two months in jail. The report was not disclosed to Gault or his parents. At the conclusion of the hearing, the judge committed Gault to juvenile detention for six years, until he turned 21. Gault’s parents fi led a petition for a writ of habeas corpus, which was dismissed by both the Superior Court of Arizona and the Arizona Supreme Court. The Gaults next sought relief in the Supreme Court of the United 3 CMY2604/1 States. The Court agreed to hear the case to determine the procedural due process rights of a juvenile criminal defendant. Procedure: Lower Courts: The proceedings against Gault were conducted by a judge of the Superior Court of Arizona who was designated by his colleagues to serve as a juvenile court judge. Lower Court Ruling: The juvenile court judge committed Gault to juvenile detention until he attained the age of 21. At that time, no appeal was permitted in juvenile cases by Arizona law; therefore, a habeas petition was fi led in the Supreme Court of Arizona and referred to the Superior Court for a hearing. The Superior Court dismissed the petition, and the Arizona Supreme Court affi rmed. Issue: The Supreme Court agreed to hear the case to determine the procedural rights of a juvenile defendant in delinquency proceedings where there is a possibility of incarceration. Ruling: Reversed and remanded. In its opinion, the Court unanimously overruled Betts v. Brady. Argued: January 15, 1963 Decided: March 18, 1963 Unanimous Decision: Justice Fortas wrote the opinion of the court. Justices Douglas, Clark, and Harlan each wrote concurring opinions. Reasoning: In its opinion, the Court underscored the importance of due process, stating that it “is the primary and indispensable foundation of individual freedom” and that “the procedural rules which have been fashioned from the generality of due process are our best instruments for the distillation and evaluation of essential facts from the confl icting…data that life and our adversary methods present.” In re Gault, 387 U.S. 1, 20 (1967). The Court noted that, had Gault been 18 at the time of his arrest, he would have been aff orded the procedural safeguards available to adults. The Court closely examined the juvenile court system, ultimately determining that, while there are legitimate reasons for treating juveniles and adults diff erently, juveniles facing an adjudication of delinquency and incarceration are entitled to certain procedural safeguards under the Due Process Clause of the Fourteenth Amendment (www. As can be seen clearly from the above, justice was denied through the non-application of the due process rules. The following are some examples of this: • Gault was arrested without being allowed to inform his parents. • His parents were not informed about the hearing or when it would take place. • Neither Gault nor his parents saw the petition that was fi led against him. 4 • On the day of the hearing, the complainant was not present to testify which one of the boys had committed the off ence. • No transcript or recording was made, so it was not clear what Gault had admitted to. • None of the parties was sworn in before testifying. • The probation offi cer’s report was not disclosed to Gault’s parents. • Even though an adult would have received a minimal punishment, Gault was sentenced to juvenile detention for six years. NOTE The importance of the case lies in the fact that the Supreme Court determined that procedural due process rights of a child criminal defendant should be upheld. 1.2 THE HISTORICAL DEVELOPMENT OF CHILD JUSTICE The history and development of child justice is discussed in detail below in relation to the periods of antiquity, the Middle Ages, the Renaissance, the colonial period and industrialisation. 1.2.1 Antiquity Historically, the concept of crime was fi rst recognised in many early societies. In preliterate societies, common custom and tradition (mores and folkways) were the equivalents of law (Siegel 2004:27). The Code of Hammurabi was established by the sixth Babylonian king and is one of the oldest legal codes, dating back to 2270 BC. This law of the Babylonians incorporated all matters related to daily living. It also included laws for specifi ed off ences and punishments. The main principle of the Code focused on the fact that the strong should not injure the weak (Robertson 2010:24). Harsh forms of punishment were handed out. This Code was based on the patriarchal system, where the father was the head of the household. Children who stubbornly defi ed their father/parents were not tolerated. One rule was specifi cally aimed at children who disobeyed their parents: if a son were to strike his father, his hands would be cut off (Regoli & Hewitt 1994:26). The Code also provided for the adoption of children. The adopted children were expected to be loyal towards the adopting father as a payment in return for their new homes (Robertson 2010:25). In the Old Testament of the Bible, the Mosaic Code/Law lists forms of behaviour that were unacceptable, as well as the accompanying punishment. A person was not permitted to steal from another, kill another or curse their parents, as such behaviour was viewed as unacceptable and was punishable with death. These laws made no reference to how to deal with off ending children, however (Bezuidenhout & Joubert 2006:13). 5 CMY2604/1 The Mosaic Code is also a basis for the United States (US) legal system: prohibitions against murder, theft, perjury and adultery precede, by several thousand years, the same laws found in the US legal system (Siegel 2004:27). The ancient Hebrews (600–400 BC) were the fi rst to make a tripartite division of childhood: • infancy (birth to 6 years) • puberty (7–13 years for males; 7–12 years for females) • pre-adulthood (all the years from puberty to 20 years) Even though childhood was divided into the above-mentioned divisions, there was no indication at which age a child could be held accountable for committing a crime (Bezuidenhout & Joubert 2003:13). The codifi cation of Roman law (450 BC) was called the Law of the Twelve Tables and is often referred to as the fountainhead of Roman law. There was no evidence that the law treated young people diff erently from adults. Decisions about criminal responsibility were central to the issue of liability for wrongdoing. An infant was defi ned as “incapable of speech and lacking in intelligence and therefore without the capacity to make intelligent choices”. This view was also held for the insane (Bezuidenhout & Joubert 2003:13–14). During the time of this Corpus Juris (meaning “body of law”), criminal responsibility was fi xed at the age of seven. Puberty began for girls at the age of 12, and for boys, at the age of 14. At this stage, the child was regarded as having full criminal responsibility for his or her actions. At puberty, the belief was that the child was capable of criminal intent and was aware that certain behaviour was wrong. By AD 597, each code violation prescribed enforced punishment, usually in the form of payment of damages. Children were not excluded from this enforced punishment. Documents describe cases where even children as young as six years, who had not even reached puberty, were hanged or burnt at the stake which illustrates the harshness with which children were treated During the Anglo-Saxon period (AD 449–1066), the death sentence became a form of punishment that could also be imposed on the youth. The age of majority was either 10 or 12 years, when a child could legally take charge of inherited property or be held responsible for a crime (L English criminal law also recognised the status of a child, and this was refl ected in laws regarding the violation of contracts and confl icts concerning inheritance, guardianship, foreclosure of mortgages and the operation of trusts and charities (Bezuidenhout & Joubert 2003:14). In England and Wales, English criminal law refers to the body of law that deals with crimes and their consequences, and it is complementary to the civil law of England and Wales (CTI Reviews 2014). The English legal system is common in other Commonwealth states, for example Australia, although government legislative practices and rare legal procedures may diff er to both a signifi cant and minor extent (Palmer & Mattar 2016). 6 ACTIVITY 1 What was the focus in the history and development of the juvenile justice system during the period of antiquity? 1FEEDBACK ON ACTIVITY 1 Refer to section 1.2.1 above. 1.2.2 The Middle Ages During the Middle Ages, many young children died from diseases or fell victim to malnutrition. Child deaths also resulted from infanticide and abandonment. Abandonment was specifi cally directed at illegitimate children and children with defects and/or disabilities. Child care practices such as swaddling and wet nursing also contributed to the death of children (Bezuidenhout & Joubert 2003:15). Swaddling was the placement of a child in a tight wrapping of cloths that made movement impossible. This posed a health hazard since the child’s clothes were not changed frequently and his/her development was thus hampered. Wet nursing was also a common practice. An upper-class woman would hire a lower-class woman (who had her own baby) to look after her baby. There was no close contact between parents and their children and because of this practice, children were viewed as possessions (Kratcoski & Kratcoski 1996:70). Very few children received an education and, in most cases, sons were expected to work on the land. Daughters were considered a drain on a family. A girl’s only salvation was a good dowry through an arranged marriage, which was seen as a good outcome for her family. Apprenticeships were also common among young boys; boys as young as seven started to work for others, where they learnt skills or household duties. During this time, children were often used as objects of sexual abuse. If children refused to work, they were regarded as disobedient and, often, penalties for misbehaviour were meted out without consideration of the child’s age. In some instances, children were even killed as a result of being punished (Bezuidenhout & Joubert 2003:15). During this time, the father exercised complete control over his family. Education took place by word of mouth from parents to children. Only more affl uent families could send their children to receive a formal education. Before the end of the 11th century AD, education was provided by clergy members. Children thus learnt to read and write in their native language and in Latin, since the latter was the language of the church. Later, formal education centres started to appear, which were not churchaffi liated. These schools usually educated young boys whose parents wanted them to practice law or an administrative profession (Anderson 2015:65) 7 CMY2604/1 ACTIVITY 2 Compare child care practices during the Middle Ages with child care practices today. 2FEEDBACK ON ACTIVITY 2 See section 1.2.2 above. 1.2.3 The Renaissance This period was characterised by a more humanistic approach towards criminal justice. The term “humanistic” was derived from the fi eld of psychology in the mid-20th century. This approach emphasises individuals’ inherent drive towards self-actualisation, the process of realising and expressing your own capabilities and creativity. During this time, there was a renewed interest in learning and children were included in tuition from a young age. The infl uence of the Protestant Reformation aff ected the handling and treatment of children with respect to their moral training, education and discipline (Bezuidenhout & Joubert 2003:14). The need for supervision of and attention given to children was acknowledged during this period. In the USA, families were infl uenced by urbanisation. Children were increasingly removed from the workforce and placed in schools. Education was seen as the vehicle by means of which children, both rich and poor, could receive equal opportunities for virtually unlimited social, aesthetic, political and moral achievements (Kratcoski & Kratcoski 1996:72). ACTIVITY 3 Urbanisation had an infl uence on the lives of children. Elaborate on this statement and indicate whether the infl uence was positive or negative. 3FEEDBACK ON ACTIVITY 3 See section 1.2.3 above. 1.2.4 The colonial period This period stretched from 1636 to 1824 in the USA. The family was viewed as the primary source of social control of children. 8 The law was uncomplicated in this respect and the family was seen as the cornerstone of the community. An off ending youth was thus more afraid of being sent back to his/her family for disciplinary action than of being in the hands of the police or probation and parole offi cials (Bezuidenhout & Joubert 2003:15). Public dunking and whipping were often used as a form of discipline and, in extreme situations, expulsion from the community or capital punishment was meted out. Sometimes, in cases of theft, a child’s parents were fi ned (Bartollas 1993:12). In Puritan society, consisting of English Protestants who were associated with a strict morality and religion, the child was considered to be oriented towards mischief and sin. It was believed that these tendencies could be repressed only by training and discipline. The 1646 Massachusetts Stubborn Child Law detailed punishments for disobedient youths. The family still served as the basic unit of control, with the father as the head of the family. If the family was unable to control a child, fi nes were issued or the child was removed from the parental home and placed in alternative care. If the child was considered stubborn, he/she would be sent to a workhouse (Bezuidenhout & Joubert 2003:16). Children were not imprisoned for crimes, but rather punished. As a form of dissuasion for children, execution sermons were used as a warning against the consequences of sin. During this period, rigid control was exercised over children (Bezuidenhout & Joubert 2003:16). According to Bezuidenhout & Joubert (2003:16), there were numerous changes in pursuit of the recognition of children’s rights during the 17th and 18th centuries in England. These included the following: • The nuclear family structure became dominant as marriages were based more on emotions and no longer on parental arrangements or for economic reasons. There was a greater concern about childrearing and children in general. Children were sent to school and discipline was applied for academic and moral lapses. • The apprenticeship movement was characterised by the placement of youths in the care of adults other than their parents, where they were taught specifi c skills. If a young apprentice was unruly, he could be punished. When incarceration was used as punishment, the youth off ender was detained separately from the adult off enders. • Chancery courts were established to protect the welfare of children. Children were seen to be under the collective protection of the king, who acted as parens patriae (father of the nation). The parens patriae served as an intervention tool in the lives of families and children. From 1652 onwards, South Africa served as a halfway station for the ships of the Dutch East India Company. Ever since then, Holland and England have infl uenced the basis of the South African legal system. We must view all legal developments in this light, as punishment was – and still is – based on the overseas countries’ legal views. Punishment was harsh and severe. The methods of punishment used were not as swift and relatively painless as they are today. Corporal punishment and deportation of criminals were common forms of punishment. 9 CMY2604/1 Regoli and Hewitt (1994:28) discuss the following examples of cases reported in a criminal court in London between 1684 and 1758: • 17 January 1684, John Atkins, a little boy, was indicted for stealing a silver tankard valued at 10 pounds. He was found guilty, sentenced and deported. • 16 April 1735, John Smith, a young boy, was indicted for stealing four yards (approximately 4 m) of printed linen valued at 5 shillings. He was found guilty, sentenced and exiled from the country. • 7 December 1758, Thomas Lyon, a 12-year-old, was deported for seven years for stealing a watch. The Chamber of Justice acted as a mediator in cases where children had disobeyed their parents. Absolute obedience from children was expected and any transgressions resulted in the child’s being harshly disciplined in the same manner as slaves were disciplined (Bezuidenhout & Joubert 2003:17). Punishment was not prescriptive and could be in the form of a recommendation to the governor from the aforementioned Chamber of Justice. For example, a 17-year-old boy was disobedient towards his mother and father and refused to go to church. In response to his parents’ admonitions, he swore and shouted at them. The court’s recommendation was that he be given only bread and water for a month and, thereafter, be enrolled as a soldier at the Dutch East India Company and sent to Batavia. The Governor approved this recommendation (Venter 1959:69). ACTIVITY 4 During the colonial period, children who off ended were more afraid of their parents than of the police. What do you think was the cause of this? 4FEEDBACK ON ACTIVITY 4 See section 1.2.4 above. 1.2.5 Industrialisation During the Industrial Revolution, families left their farms and fl ocked to the cities in search of better prospects. The migration to the cities meant that people with various value systems came into contact with one another. The migration to the cities created problems for families and children. Children became an important source of cheap labour and were in high demand. The role of the family changed, as the religious and educational functions were assumed by the factory owners and, later, by the government and religious institutions (Bezuidenhout & Joubert 2003:17).