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RETRIBUTION 1
Makaela L. Leisy
Abstract
The paper discusses the history of the juvenile justice system and its development since. It then
continues to speak of the difference between both rehabilitation and punishment for juveniles.
When speaking about punishment the paper provides two viewpoints on whether or not a
juvenile should be tried as an adult. The paper then speaks about the ethical and psychological
effects on a juvenile of both punishment and rehabilitation. Then speaks about the advantages
and disadvantages of both. Then speaks about real life examples of both being used, along with
how effective is is at discouraging recidivism. Then, the proposed solution states somewhat of a
compromise between the two and how they are both necessary.
REHABILITATION VS. RETRIBUTION 3
Easily influenced juveniles can be directed down a path where redemption is not offered.
Adolescents can be manipulated into a lifetime behind bars. It is the juvenile justice system’s
obligation to persuade them out of the life of crime. However, the system fails to fulfill its
obligations, leading to children not being persuaded away from criminal activity. The system is
tasked with two choices: rehabilitation and punishment. Many people believe that both of them
have positive effects, but there are arguments on each side. To ensure a decrease in adolescent
recidivism, one must take into account the psychological effects of the juvenile as well as the
ethics behind the treatments provided, which may cause a need for reforming the juvenile justice
system.
The juvenile justice system was created in order to separate juveniles from adults. Before
the birth of the system, juveniles were seen as miniature adults. During the Progressive Era,
poverty stricken children ended up in a life of crime and when put with adults, the adults
influenced them to a future of criminal activity. The juvenile justice system began in the United
States in 1899, with the first court located in Illinois. The basis of the United States system is
influenced by the English Bridewell Institution. This institution is focused on honing lifestyle
skills necessary for life after the minors are discharge from the facility. The reason they teach
these skills is based off the idea that a juvenile's environmental factors influences criminal
actions due to these children’s mentality focusing on survival.At the Bridewell Institution it was
observed that through the teaching of the skills, it sparked the hope of encouraging those released
to give back to the community in a positive way. The English Bridewell Institution was held as a
precedent for other beginning institutions. These beginning organizations including houses of
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refuge, new reformatories, and separate institutions for juvenile females ("Development of the
The first courts were required to operate under the philosophy of “parens patriae.” Parens
patriae is a philosophy that began with the case Prince v. Massachusetts (1944). The case
consisted of child labor issues regarding the mother making her two children distribute the
“Watchtower” and “Consolation,”which are similar to a newspaper that pertains to religion. The
question of the case was whether or not the constitutional right to religion outweighed child labor
laws. The decision was the Constitution did outweigh child labor laws. Also if the parent is seen
as unfit to care for the child, the state has the right to take custody of the child. The philosophy
started its practice through English Common Law when the king would be held responsible for
his subjects. The philosophy within the United States is applied to those who would be mentally
The state is the supreme guardian of all children within its jurisdiction, and state courts
have the inherent power to intervene to protect the best interests of children whose
supplemented by legislative acts that define the scope of child protection in a state
In summary, parens patriae is a philosophy which the state may impose in situations that would
benefit the child. According to an interview done with Linda Bryant, now Assistant
Superintendent of the Hampton Roads Regional Jail, but who was once an attorney specializing
in juveniles, stated that when the system first started, the state was more concerned with
REHABILITATION VS. RETRIBUTION 5
rehabilitation than punishment and as years have progressed, punishment began to integrate into
Contributing Factors
Socioeconomic Status
There are multitudes of reasons why juveniles are introduced into the juvenile justice
system. One of the reasons is being in a lower socioeconomic classes, which are more likely to
be involved within criminal activity, according to studies done by National Research Council
(MacCord, 2001). Socioeconomic class impacts a juvenile's actions greatly due to the fact that
lower classes, according to Health Service Research, have a higher probability of neglect and
gang affiliation (J., 2011). In addition, those who are in the lower classes are also more likely to
have social, emotional, and behavioral difficulties (Newacheck, Hung, Park, Brindis, & Irwin,
2003). Due to the conditions which the poverty stricken kids have to endure, they are more
likely, according to the previously stated facts, to get roundup in criminal activity. Whether it is
their lack of care, deteriorating health, or their pull towards a family setting regardless of the
impending danger, such as that of gangs. While considering economic classes, the poverty cycle
must be mentioned as well. The poverty cycle is as follows: family in poverty, child grows up in
poverty, disadvantaged in education and skills, struggles to get a job, fail to escape poverty
cycle, and ends in family in poverty ("Cycle of Poverty," 2015). The continuous cycle gives
discouragement to those involved within it; therefore, it plagues the poverty stricken population
of America and anywhere else for that matter. Until the cycle can be stopped, there will always
Family Life
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Depending on the quality of their family life, it may impose a negative effect on the child.
According to Macord, an individual on the Committee of Law and Justice and Board on
Children, Youth, and Families, “developmental risks have additive negative effects on child
outcomes, children with long-term negative outcomes who suffered perinatal complications more
often than not came from socially disadvantaged backgrounds.” The quote is saying that if there
is an event that happened to the individual that resulted in a negative outcome, the child is more
likely to believe that negative outcomes are the normal results. While family is not the main
reason one decides to either commit a crime or not, the influence of family is much greater than
we give it credit for (MacCord, 2001; DeCarlo Santiago, C., Wadsworth, M. E., & Stump,
Ethnicity
Another universal factor of juvenile delinquency is race of the juvenile, a factor that then
continues on with adult life. According to Cathy Widom, Nancy Crowell, and Joan McCord,
editors of “Juvenile Crime, Juvenile Justice,” state “the proportion of blacks under the
supervision of the juvenile or adult criminal justice systems is more than double their proportion
in the general population”(2001). Before this sentence within Juvenile Crime, Juvenile Justice is
a series of percentages with the most outstanding statistic being “Although black youth
represented approximately 15 percent of the U.S. population ages 10-17 in 1997, they
represented 26 percent of all juvenile arrests,...”(2001). The book also contains a graph in
reference to white race and other, where the numbers of population is higher than those involved
with delinquent behavior, which is how, according to the reading, the proportions should be. The
two statistics regarding the black race are then significant in reference to their presence within
the juvenile justice system. African Americans, belonging to the minority population, according
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to Callie Harbin Burt, Ronald L. Simons, and Frederick X. Gibbons, are influenced to fit the
racial stereotypes in which is imposed on the minority. Due to these racial stereotypes authorities
are going to be what they see as “cautious” around the minority; therefore, police are
unintentionally more inclined to focus on African Americans than any other race (Burt, Simons,
& Gibbons, 2012). This reason is one accounting for the uneven distribution between the races
within the juvenile justice system. This treatment may also be connected to systematic racism a
theory which suggests that throughout institutions racism is embedded within, which is also
proven by the police being more inclined to question the African American race based off of
discrimination.
Mental Illness
Another common cause of being within the juvenile justice system is mental illness
which has been showing a prominence in previously years. “Estimates reveal that approximately
50 to 75 percent of the 2 million youth encountering the juvenile justice system meet criteria for
a mental health disorder” (Underwood & Washington, 2016). With that large of a percentage the
juvenile justice system can be considered blind to not weighing the full effects of mental illness
on children. Underwood and Washington continue to say illnesses that are the most common
within the jails have side effects which suggest irritability and aggression. This aggression gives
the individual a part of an equation to commit a crime, which could later turn into a more intense
hate crime of sorts. According to a study done by the National Research Council on children
diagnosed with mental illness, illnesses have the capability to make individuals more likely to
commit a crime and be unaware of the actions in which they partake in. They continue to say that
most of the individuals with mental illnesses do not realize that those actions were wrong. The
combination of aggression and not knowing wrong from right will make an individual more
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likely to commit a crime. This is a possible conclusion to the high population within the juvenile
History
Punishment for juveniles who committed crimes and are brought before a court, ranges
anywhere between admittance in a youth detention program to a life sentence. Due to Roper v.
Simmons (2005), a United States Supreme court case which concluded that the death penalty
applied to juveniles violates the Eighth Amendment protecting citizens from “cruel and unusual”
punishment, the death penalty is not allowed for minors. The violation constituted through the
decision because a juvenile’s brain lacks the maturity and brain development in which is
expected of all adults. Due to the fact that the mental illness population within the justice system
is so high, another case that would apply to punishment would be Atkins v. Virginia (2002).
Atkins v. Virginia is a United States Supreme Court case that said that those with a mental illness
cannot be sentenced to death due to the lack of mental capacity and capability. Atkins v. Virginia
was the basis of the decision of Roper v. Simmons. A portion of the population believes that
adolescents are in need of punishment in order to learn the errors of their ways, although
punishment is proven to only have short-term behavioral effects. An argument brought by the
general population often in regards to juveniles is whether or not they should be tried as adults.
(JJDPA, PREA)
A portion of the population believes that teenagers close to legal adulthood deserve to be
treated as adults in a court of law. A common law associated with juveniles being treated as
adults is the Automatic Transfer Laws carried by some states, enforced in states like Illinois. A
law which states that if a 16 or 17 year old is to commit a violent crime, that they may be tried as
REHABILITATION VS. RETRIBUTION 9
an adults, while some states even allow 15 year olds to be tried as adults for serious crimes.
Occasionally, this process may also be referred to as a waiver, which is when a judge waives the
protections of the juvenile court. Minors as young as 13 within a few states are allowed to be
waived. A fewer number of states let children of any age be tried as adults for serious offenses.
Arguments for the juveniles being treated like adults are adult courts give juveniles the right to a
jury trial unlike juvenile courts. These juries then may be more sympathetic towards a minor,
and due to over crowded jails the juveniles case has a higher probability to be disposed of or they
may receive a lighter sentence. With juveniles being involved in the adult system, they are
deprived of the treatment they would get through the juvenile justice system (Scialabba, 2016;
Michon, 2017).
There are those who then believe in the alternate choice, being to keep juveniles separate
from the adult justice system at all costs. They believe that no child to be subjected to the
extreme judgement and punishment they may receive. A common reason for this view is the lack
of maturity and development within certain sections of the brain. An adolescent’s brain is still
maturing at that the development is not complete until the mid 20s. Some experts note
adolescents as being impulsive, aggressive, emotionally volatile, risk takers, reactive to stress,
vulnerable to peer pressure, focus only on short-term effects not long-term effects, and fail to
evaluate alternative choices. Other arguments to keep children seperate is the treatment that the
adolescents receive when brought within the adult justice system. Among these arguments are
the more severe sentences that the juveniles are subjected to, the options for punishment and
treatment are wider within juvenile courts, and juveniles will have to serve time in an adult
prison. Then there is also the question of the future of he juveniles considering the social stigma
around adult court sentences, and lastly, adult sentences are harder to seal than juvenile
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sentences. Therefore, the juveniles might have to endure harsher punishments than they would
have been given in the juvenile court ("The New York Times Company," n.d.).
Punishment for juveniles most often than not end in some form of incarceration, whether
in a detention center or behind bars. A psychological effect of youths being placed behind bars
are mental health issues such as depression and anxiety. The anxiety and depression created due
to the inability of the youth to form relationships within their surrounding whether it be out of
fear or physical incapability (Johnson, 2016). More effects on the juveniles are the
discouragement in the education field. In fact there is a significant population of juveniles that
will drop out of highschool and a significant population of those who would then be incarcerated
from institutions attempting to turn the juveniles away from a life of crime, will not produce an
outcome in which will appeal to the public. Due to the youth who are punished for their crimes
being more likely to continue with the life of crime, punishment while deterring a small
population is not effectively diverting the juveniles from the path of crime. With all of the
The remainder of the population believes that a child will learn more about their mistakes
through rehabilitation programs. They believe that punishment is only effective in promoting
short-term behavioral changes and the suppression of negative behavior depending on the details
of the punishment in use. They say that punishment in order to be effective must be predictable
and must be enacted on immediately. It may not be to extreme as it would not obey the Eighth
Amendment of the Constitution. The threat of punishment will not discourage criminal activity,
due to the mentality that the person will not be caught. It will also have no effect on those who
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are not aware of the possible consequences of their actions. Although punishment might not be
presented within the best way, rehabilitation is a method of treatment appealing to the child's
psyche. There has been a rise in the number of rehabilitation programs in late years considering
cognitive approaches (Andrew Day Professor of Psychology; Member of the Strategic Research
Centre for Social and Early Emotional Development, Deakin University, 2017). The programs
Among the present day rehabilitation programs, the United States had attempts to focus
on many parts of a juveniles life in order to find the . One aspect is school and a successful
program regarding school is the School-wide Positive Behavioral Interventions and Supports.
This program acts as a prevention strategy aimed at reducing behavior problems that lead to
office discipline referrals and suspensions, and change perceptions of school safety. This
program being effective due to a decrease in school suspensions along with improved perception
of school safety. Another aspect is family, and a successful program for family would be the
Strengthening Families Program. This program is meant to assist with behavioural problems and
improve the skills of the parents within the minor’s life. The last two programs focus more on the
psyche of adolescents. The first program being Promoting Alternative Thinking Strategies,
which assists the individual in developing emotional and social skills, while reducing aggression
pared with behavior problems. Lastly, the Juvenile Breaking the Cycle (JBTC) Program which
through a series of assessments continuously encouraged the youth to not want to be involved
within criminal activity (Andrew Day Professor of Psychology; Member of the Strategic
Research Centre for Social and Early Emotional Development, Deakin University, 2017).
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Rehabilitation was the main focus of the Bridewell Institution; therefore, it can be
assumed that the juvenile justice system has a greater focus on rehabilitation. Many believe that
the rehabilitation can make the difference between the creation of a productive life and falling
victim to criminal patterns. This is based off the belief that rehabilitation completes the job of
detering juveniles away from a life of crime. It is also proven that more people are willing to pay
for rehabilitation due to the fact that it is of a lesser cost, and people can trust rehabilitation to do
Punishment v. Rehabilitation
within adult jails. The Bureau of Justice Statistics reported that some 13 percent of juveniles
within prisons were sexually assaulted, and the majority of the assaults came from those caring
for them. The Prison Rape Elimination Act of 2003, states that jails must separate adults and
juveniles which happens most of the time but only at the end of the day, while during the day
juveniles are surrounded by adults. Along with the arguments of the juvenile’s safety, there are
arguments that punishment is not as effective as rehabilitation. McCord mentions a study within
Juvenile Crime, Juvenile Justice a study stating that two thirds of offenders are known to
reoffend after being discharged from prison. In Detroit, Michigan, there was a lawsuit brought
against the Michigan Department of Corrections by multiple offenders claiming that they have
been raped and assaulted by the the adult prisoners and staff at the facility. Each offender being a
juvenile placed within the adult justice system, some due to violent crime and others due to
multiple petty crimes. The case of rape ultimately disobeying the Prison Rape Elimination Act of
2003 ("Juveniles In Prison: Rape, Abuse Claims In Class Action Lawsuit Against The MDOC,"
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2015). As stated earlier in the paper, others do not believe the effects imposed by punishment are
A re-educational program in which James Gilligan along with his colleague Bandy Lee
created to work with male offenders in the San Francisco jails was proven to reduce violence
within the jail. Participation within the program was also proven to reduce the probability of the
participants to reoffend after being discharged by 83 percent. “This program saved the taxpayers
$4 for every $1 spent on it, since the lower reincarceration rate saved roughly $30,000 a year per
person.” This experiment proving that rehabilitation is successful in deterring offenders from
crime ("The New York Times Company," n.d.). Another example of a successful rehabilitation
process is that of Derrick Thomas. At the young age of 13 Derrick was involved in the juvenile
justice system for burglary. Then recommended Thomas for the Dade Marine Institute (DMI)
was recommended by a counselor of his, and through the experience he created better social
skills and learned both short and long-term goals. He was then encouraged into attending college
after gaining a football scholarship. After college he was drafted by the Kansas Chiefs into the
NFL. While also creating a foundation “provides social, cultural and educational opportunities
for inner-city kids, including reading programs and summer camps with character-building
activities modeled after some of the activities at DMI”(Keynes, 1999). These two scenarios
Proposed Solution
Behavior state that “three fourths of youth offenders released are convicted within a year of
release.” This proves that recidivism is not only reality for many of the juvenile offenders, but it
affects a large portion of the offenders. Reports observing crime rates have noticed that crime is
REHABILITATION VS. RETRIBUTION 14
not increasing or decreasing immensely so many believe that now would be the time to reform
the system. The main purpose of the reform is prevention, restoration, and interrogation
(MacCord, 2001). Some individuals are shown to need both punishment and rehabilitation in
order to become better, so it is the systems job to find the balance between the two.
court of law due to the lack of maturity and brain development which helps with decision
making, as stated earlier in the paper. Juveniles should not be sentenced to life in prison either
because if the mental capacity is not present when one commits the crime a severe punishment
that early in life should not be in question. Economically, ethically, and psychological society, as
well as juveniles, can benefit from a combination of punishment and rehabilitation, with the main
focus being put on rehabilitation. Whether the rehabilitation be through programs provided to
youth or admittance into a juvenile detention center, in order for the adolescent to realize the
fault within their actions for a longer period than what would be a result of punishment,
Conclusion
Punishment and rehabilitation are both meant as ways to steer juveniles away from
crime, although they are entirely two separate concepts. One side being the harsher treatment in
hopes of an imprint on a child's brain, and the other to teach the child what they did wrong as
well as how they may not come across the situation again. Children learn more through
rehabilitation due to its effects being long-lasting, while punishment offers a short-term solution
that costs more, but does not ensure the end of recidivism. Taking into account the ethics and
REHABILITATION VS. RETRIBUTION 15
psychological effects of the different results one might receive for commiting a crime, the
juvenile justice system must be reformed to ensure the decrease in juvenile recidivism.
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