废除死刑之门——未成年人不判死刑原则及其在中国的确立与延伸

禁止对未成年人判处死刑是联合国《儿童权利公约》、《少年司法最低限度标准规则》、《公民权利与政治权利国际公约》等所确立的一项基本原则。自20世纪初以来,中国即开始了确立这一原则的努力,但直到1997年刑法典才实现了与这一原则的"无缝衔接"。考察未成年人不判死刑原则在中国确立的历程,至少有三点启示:第一,尽管艰难,但彻底废除死刑在中国仍具有实现的可能性;第二,从犯罪主体(强调其社会弱势群体特征)的角度废除死刑要比从罪行性质的角度入手,更具可行性,也更为平等和较少带来负面影响;第三,青年,尤其是年轻青年与未成年人有着诸多类似之处,可以而且应当首先将未成年人不判死刑规则延伸于这一群体,这也是避免误判不满18岁未成年人死刑的需要。     

THE “TRUE” JUVENILE OFFENDER: AGE EFFECTS AND JUVENILE COURT SANCTIONING

Age is the only factor used to demarcate the boundary between juvenile and adult justice. However, little research has examined how age guides the juvenile court in determining which youth within the juvenile justice system merit particular dispositions, especially those that reflect the court's emphasis on rehabilitation. Drawing on scholarship on the court's origins, attribution theory, and cognitive heuristics, we hypothesize that the court focuses on youth in the middle of the range of the court's age of jurisdiction—characterized in this article as “true” juveniles—who may be viewed as meriting more specialized intervention. We use data from Florida for court referrals in 2008 (N = 71,388) to examine the decision to proceed formally or informally and, in turn, to examine formally processed youth dispositions (dismissal, diversion, probation, commitment, and transfer) and informally processed youth dispositions (dismissal, diversion, and probation). The analyses provide partial support for the hypothesis. The very young were more likely to be informally processed; however, among the informally processed youth, the youngest, not “true” juveniles, were most likely to be diverted or placed on probation. By contrast, among formally processed youth, “true” juveniles were most likely to receive traditional juvenile court responses, such as diversion or probation.     

The Double Paradox of Juvenile Justice

This article considers the history of a century of juvenile justice. Illinois 'invented' the separate 'children's court' in 1899 and this concept was spearheaded in Northern America, Great Britain and continental Europe in the first decades of the new century. However, a century after its foundation the future of the juvenile court is in doubt everywhere in the Western world. Some conclude that there is a cyclical pattern in juvenile justice policies. That proposition is rejected in this article. The proposition of a cyclical pattern also presupposes that there is no real problem at stake in treating juvenile offenders. The main point of this article, however, is that juvenile justice cannot escape trying to solve a very complicated foundational issue. This issue is a double paradox, that is, juvenile justice has to solve two philosophical questions: the justification of punishment and the justification of punishment for non-adults. This diagnosis presents a new conceptual framework for an analysis of the history of juvenile justice.     

JUVENILITY AND PUNISHMENT: SENTENCING JUVENILES IN ADULT CRIMINAL COURT*

The study outlined in this article addressed a key limitation of prior research on the punishment of juveniles transferred to adult court by employing propensity score matching techniques to create more comparable samples of juvenile and young adult offenders. Using recent data from the Maryland State Commission on Criminal Sentencing Policy, it tested competing theoretical propositions about the salience of juvenile status in adult court. Findings indicate that even after rigorous statistical matching procedures, juvenile offenders are punished more severely than their young adult counterparts. We found no evidence that this “juvenile penalty” is exacerbated by an offender's race or gender, but it does vary starkly across offense type and mode of transfer, being driven primarily by drug crimes and discretionary waivers. The import of these findings is discussed as they relate to the future of juvenile justice policy regarding the continued use of juvenile transfer to adult court.     

Addressing Juvenile Crime

At‐risk and offending juveniles remain the most promising target group for crime reduction efforts. Many of the problems these youths faced in the 1960s remain or have intensified, and policies to address them have shifted. Yet, research on the causes, consequences, and best responses to juvenile crime has advanced considerably and provides important lessons for policy makers and practitioners moving forward. These include (a) help don't hurt; (b) provide better procedural protections; (c) continue to build, implement, and refine evidence‐based programming; (d) tailor services; (e) tackle community‐level problems; (f) really listen and work together; (g) build better data systems; and (h) invest resources in children and teens. Providing a retrospective on the 1967 U.S. President's Commission on Law Enforcement and Administration of Justice report, I briefly summarize and update the Commission's findings on factors related to juvenile delinquency, outline the Commission's policy recommendations, review the research on policy and practice changes since the report, and consider current implications for policy and practice.     

When Juveniles Commit Sexual Offenses: Considerations and Recommendations for Judges

Considering sexual offenders’ impact on victims, families, and communities, one cannot understate the importance of utilizing evidence‐based dispositions with juvenile offenders adjudicated for sexual offenses. This proves difficult, however, as the body of literature regarding juvenile sexual offenders is complex and often misunderstood. Research on how juvenile sexual offenders experience – broadly construed – the juvenile justice process is particularly sparse. The research that is available about juvenile sexual offender treatment, recidivism, and outcomes in general tends to be mixed as to the best way to deal with this distinctly stigmatized population. Thus, the purpose of this review article is primarily educational in that we summarize the highlights of current research and thinking in regards to juvenile sexual offenders with which judges should be familiar, and subsequently offer practice recommendations. The ultimate goal in offering and applying these recommendations in juvenile court settings is to help alleviate potential collateral consequences, increase positive long‐term outcomes for juveniles, and increase public safety.     

JUVENILE WAIVER AS A MECHANISM OF SOCIAL STRATIFICATION: A FOCUS ON HUMAN CAPITAL*

The historic transformations of the criminal justice system must be justified and interpreted through the effects on criminals (Maruna and Immarigeon, 2011). The push for harsher sentencing policies for juvenile offenders specifically through the use of juvenile waiver to criminal court is one such policy that is not well understood in terms of its effects on offenders, especially in terms of broader outcomes beyond recidivism. We use data from the Pathways to Desistance Study, which consists of a sample of adolescent offenders followed for 7 years postadjudication, to investigate the effect juvenile waiver has on human capital acquisition and yield among 557 adolescents from Maricopa County, Arizona. By using various matching specifications, our findings demonstrate that juveniles transferred to adult court experience no deleterious effects on human capital in terms of educational acquisition compared with similar youth retained in the juvenile system, yet they still earn considerably less income 7 years postadjudication. These results suggest that an important and unintended collateral consequence of juvenile waiver is an increase in social stratification potentially through labeling and labor market discrimination.     

Juvenile convicts and their colonial familial lives

Convicts were transported from Britain to Van Diemen’s Land from 1803 until 1853. Approximately 10 000–13 000 juveniles were among the 148 000 convicts transported. This article has traced the lives of female and male juvenile convicts transported, who were sentenced at the Old Bailey (the Central Criminal Court in London), and voyaged to Van Diemen’s Land. By exploring individual lives, and contextualising their experiences, it is possible to go beyond the circumstances of offending–through to their punishment period, to their lives upon release. This article will focus on one aspect of juvenile convict lives post-transportation–their familial life. The method of nominal record-linkage has been used across a variety of criminal and non-criminal records (including civil records and newspapers) in order to build up a picture of these young offenders. Going beyond the institution and focusing directly on female and male juveniles is important in understanding the lives of this unique group. From the behaviour of the juvenile convicts themselves, to the decisions of the administrators and the conditions of the penal colony into which they were thrust; were these female and male juvenile convicts able to form ‘settled’ colonial lives and which factors inhibited or facilitated this process?     

THE JUVENILE PENALTY: A COMPARISON OF JUVENILE AND YOUNG ADULT SENTENCING OUTCOMES IN CRIMINAL COURT*

This study uses criminal court data from the Pennsylvania Commission on Sentencing (PCS) to investigate the sentencing of juvenile offenders processed in adult criminal court by comparing their sentencing outcomes to those of young adult offenders in similar situations. Because the expanded juvenile exclusion and transfer policies of the 1990s have led to an increase in the number of juveniles convicted in adult courts, we argue that it is critical to better understand the judicial decision making processes involved. We introduce competitive hypotheses on the relative leniency or severity of sentencing outcomes for transferred juveniles and interpret our results with the focal concerns theoretical perspective on sentencing. Our findings indicate that juvenile offenders in adult court are sentenced more severely than their young adult counterparts. Moreover, findings suggest that juvenile status interacts with and conditions the effects of other important sentencing factors including offense type, offense severity and prior criminal record. We discuss these results as they relate to immediate outcomes for transferred juveniles, criminal court processes in general and the broader social implications for juvenile justice policy concerning the transfer of juveniles to criminal court.     

Sustained Outcomes? an Exploratory Study of Juvenile Drug Courts and Long-Term Recidivism

This exploratory study examined juvenile drug courts’ effect on adulthood recidivism. Utilizing a twelve-year average follow up time, adult recidivism rates were compared between previous juvenile drug court participants and a comparison group of juveniles who participated in traditional probation. Linear regression models indicated limited recidivism effects of drug court on arrests or convictions into adulthood. The findings suggest that gender and race may play a role in how justice-involved juveniles interact and experience juvenile drug court, highlighting the need for gender-responsive and culturally responsive policies, practices, and programs within juvenile drug courts. Recommendations are made regarding future research areas and ways to potentially improve long-term juvenile drug court outcomes.     

The effect of transfer mechanism from juvenile court on conviction on a target offense in criminal court

The question of whether juvenile offenders should be handled in criminal court has been addressed by a number of studies. However, few have examined the effectiveness of the type of transfer mechanism and how it relates to protecting the public. Whether the mechanism used to transfer juvenile offenders to criminal court has any effect on the likelihood of being convicted of a target offense criminal court is examined here. It was found that the juveniles sampled in this study had a greater chance of being convicted on their target offense in criminal court if they were sent there via judicial waiver than if they were excluded from juvenile court jurisdiction by statute.     

Arkansas Legislative Reforms Provide Framework for Change While Supporting Parens Patriae Philosophy of Juvenile Court

Changes in Arkansas's juvenile laws resulting from the school shootings in Jonesboro impacted two separate issues of the juvenile court process. The first law changed aspects of transfer provisions for processing juveniles as adults. Secondly, the law created new provisions allowing blended sentencing for juveniles who commit certain enumerated offenses. Both provisions are examined in this article. The authors examine the impact those changes had on the types and numbers of cases handled by the court and argue that the framework provided by Arkansas's Extended Juvenile Jurisdiction law illustrates a legislative response to juvenile violence that supports the concept of parens patriae and promotes the original purpose for which juvenile courts were created while balancing concerns for public safety.     

论未成年人恢复性司法的合理性与局限性

恢复性司法是一种通过恢复性程序实现恢复性后果的非正式犯罪处理方法。为考察司法人员与公众对待确定未成年人恢复性司法制度态度,对法官、公众等不同群体作问卷调查,结果表明,法官和公众对未成年人司法制度的诸项改革基本认可。该制度的合理性表现在可减少刑事污点对未成年人的消极影响,有利于恢复受损的社会关系,对违法犯罪的未成年人有积极的矫正作用;其局限性体现在难以满足同罪同罚的刑法原则,难以避免替代性的承担责任的现象等。避免局限性的关键在于要解决恢复性司法与正式司法程序的关系问题。     

社会管理创新视域下未成年人犯罪刑事政策研究

对于未成年人给予特殊的照顾和关怀是世界各国的共识。在刑事政策方面,多数国家都很重视对于未成年犯罪人的教育、矫治。我国在社会管理创新视域下,对于未成年人犯罪刑事政策应当从定罪政策、刑罚政策以及执行政策三个方面进行全面的改革和完善。在借鉴国外先进立法例的前提下,结合我国的实际情况,建立符合我国国情的少年司法制度。     

我国未成年人犯罪刑罚执行制度研究——兼论社区矫正制度

未成年人犯罪刑罚执行制度的基本理念在于保护和教育,对此,我国目前的体制虽然取得了一定成效,但仍存在具体操作性不强、执行主体不清、责任主体不明等缺陷,缺乏系统化。而社区矫正恰是完善我国未成年人犯罪刑罚执行制度的优先选择,应对原有项目加以改进并进行整合,同时在立法上应进一步完善刑事法、构建特别法体系,完善慎逮制度、充分发挥暂缓起诉制度的保护和帮教作用,重构未成年人缓刑制度、取消对未成年人的劳动教养等。     

The Overrepresentation of Juvenile Crime Proportions in Robbery Clearance Statistics

Many, especially casual observers, interpret juvenile arrest statistics to bea measure of crime committed by juveniles. Others argue that clearancestatistics are a more representative index of the relative responsibility ofjuveniles. Using data from the FBI's National Incident-Based ReportingSystem, this paper explores the likelihoods of arrests for juvenile andadult robbery offenders. The findings show that juvenile robbery suspectsare 23% more likely to be arrested than adults, and 32% more likely aftercontrolling for other incident characteristics. Analyses also found anincreased likelihood of arrest in robbery incidents in which (1) the victimwas a juvenile, a female, or white; (2) the offender was white or female;and (3) the victim was injured. The presence of a weapon was not relatedto the likelihood of arrest. The differential influences of specificincident characteristics on the likelihood of arrest for juveniles andadults highlight the underlying biases of law enforcement statistics inassessing the juvenile component of crime.     

Juvenile Competency and Pretrial Due Process: A Call for Greater Protections in Massachusetts for Juveniles Residing in Procedural Purgatory

While juvenile courts continue to balance and reevaluate the dual goals of community safety and rehabilitation of youth, juveniles who are not competent to stand trial have been left without sufficient procedural protections. This paper examines Massachusetts’ approach to juvenile competency, due process, and pretrial procedure, within a national context. The inadequacies of the Massachusetts juvenile competency laws are not unique. Currently there are nineteen states that either entirely lack juvenile‐specific competency legislation or merely incorporate inapposite adult criminal statutes and standards into the juvenile context—making it difficult or impossible for those juvenile courts to dismiss or divert a delinquency petition following an incompetency finding. Massachusetts and states similarly situated should adopt explicit statutory language to delineate the basis for a juvenile incompetency finding and the grounds for dismissing delinquency complaints pretrial after an incompetency finding has been made. This paper proposes that Massachusetts adopt a timeline for effecting such dismissals based in part on the amount of time a juvenile could face if committed to the juvenile correctional authority following an adjudication of delinquency. The paper also recommends best practices of states that are pioneering juvenile legislative reforms like dismissal timelines and incompetency presumptions. Finally, we suggest a more stringent regulatory framework be put in place governing the pretrial detention of youths who have been found not competent to stand trial—a framework that recognizes and preserves the juvenile's substantive rights to education, mental health and rehabilitative services. Without legislation, juveniles found not competent to stand trial remain subject to the prospect of indefinite locked detention, often without access to the necessary services that contribute to future success as well as attainment of competency. This lack of due process runs counter to the foundational goals of the juvenile justice system.     

Court outcomes among female juveniles with sexual offences

ABSTRACT

Female juveniles with sexual offences (FJSOs) are an understudied population. The current study compares FJSOs with their male counterparts and evaluates whether male and female juveniles with sexual offences from different family types have similar charges and court outcomes. Data were obtained from a statewide court dataset in Alabama from 2004 to 2014 (n?=?205 females, 2816 males). Participants were categorised by offence category, family type, and court outcome. Chi-square tests and hierarchical logistic regressions were conducted to test for differences in offence patterns and court outcomes by gender and family type, respectively. Females committed less severe offences and received less severe punishments for a given offence compared with males. Family type and two-way interactions between family type, gender, and offence severity played limited roles in offence patterns and in court sentencing. Disposition patterns in females point towards the feasibility of providing more services for all juveniles with sexual offences.     

JUVENILE CRIME AND WHY WAIVER IS NOT THE ANSWER

Many states deal with the issue of juvenile crime by charging juveniles as adults. This is done by a method of waiver. Waiver allows adult criminal courts to have the power to exercise jurisdiction over juveniles.¹ In effect, a juvenile is tried and sentenced as an adult when his or her case is waived (removed) from the juvenile court to the adult court. Waiver in juvenile (youths seventeen and younger) cases should never be allowed because juvenile offenders are too immature and incompetent to appreciate the nature of their crimes and because the juvenile justice system is a more appropriate place to rehabilitate juvenile offenders.     

Comparing Sexuality,Aggressiveness, and Antisocial Behavior of Alleged Juvenile Sexual and Violent Offenders,

Sexual delinquency in juveniles is insufficiently explored in regard to the specificity of offender characteristics. The aim is to investigate relevant areas for juvenile sexual offending in a precourt, pretreatment group. Thirty‐two alleged juvenile sexual offenders (ASO) referred to by police were compared with 32 juvenile nonsexual violent offenders (VNO) on standardized measures of aggressiveness and psychopathology, antisocial behavior, substance use problems, and sexuality. Less externalizing disorders and antisocial behavior were found among the ASOs than among the VNOs. The ASO group was sexually less experienced, had less trust in their relationship abilities, fewer victimization experiences, and reported more sexual deviance, while pornography use and obscene calls were reported less often. Few juvenile sexual offenders had severe problems in the investigated areas. Including groups of offenders before court, treatment or incarceration in research appears crucial to understand the full spectrum of sexual deviance in youth and avoid misguidance due to selection factors.