Law in the Black Community

The question of judicial measures for juvenile offenders has always elicited mixed reactions on all spheres of the American justice system. While there exists judicial courts to handle criminal prosecutions against minors, these measures are usually applicable to lesser criminal charges. In cases where older juveniles are charged with capital offences like robbery with violence, homicides, most state attorneys will ask the court to try the offenders like adults.

Most states have enacted legislations to provide for adult trials for minors who are deemed adult enough to stand trial in an adult court jurisdiction. Even for those without such legislations, the discretion is always left at the hands of the relevant district attorneys to determine the fate of such minor offenders. The question that matter is not the legal foundation, but the moral and psychological basis for such trial.

The immaturity of the offenders coupled with the chance of wrongful execution of the minor based on evidenced extracted through coercion, intimidations makes the case for death penalty for the juvenile offenders untenable, no matter what kind of offence they are suspected of committing. Just like the US Supreme Court held that conviction and hanging of mentally retarded people is a violation of their constitutional rights (Stanford v. Kentucky, 1989) due to disproportional nature of the punishment when compared to their culpability, so should such reasoning be applied to the capital offence juveniles.

Psychologically, a person under the age of 18 years is considered not fully developed both in mind and in brain. Therefore their judgment faculty may still be underdeveloped to be held culpable for such crimes even if they are incriminatingly found guilty. According to Nobel Lawrence, research has found no evidence that trying minors in adult courts has resulted in decreased juvenile crime rate and it is therefore self defeating when such actions are taken. Such practice only increase rate of recidivism (2009).

The issue of race tension and associated racism has made such trials look unfair. Studies and research have found out that minority youths are disproportionately tried as adults based on their skin color. Most African American minors have more often than not, found themselves in adult docks. The “Youth Crime/Adult Time” report found that in 9 out of 10 felony charges, African American are tried as adults.

While determining the effectiveness of the death sentence to the minors, the Missouri’s Supreme Court in the matters of Simmons v Roper (2004), the court upheld that the executions of persons charged with homicides before their 18 birthday is unconstitutional. The court based its verdict on immaturity and the consequent reduced culpability of the offenders, the special risk of wrongful execution based on false confession. The court also cited the trends in other states’ judicial procedures against convicted minors where courts rarely implement the death penalties even in jurisdictions where it is legal.

On March 1, 2005, the U.S. Supreme Court, confirming the Missouri Supreme Court’s decision, voted 5-4 and affirmed the ruling in Simmons v Roper. The U S Supreme Court cited social science evidence of the reduced culpability of juveniles and the declining use of juvenile death penalty (Fagan & West, 2005).

While the US constitution has been silent on matters of juvenile death penalties, state legislatures have take lead role in enacting statues that prohibit such penalties. These include Wyoming 2004, Kansas 1994, New York 1995, Indiana 2002, Montana 1999, South Dakota 2004 (Fagan & West, 2005). This represents advances in elimination of death sentences in most trials of juvenile offenders in the US.

The societal perception of viability of the death sentence for juvenile offenders is trending across the political divide. Currently, it is no longer the liberal Americans that view such juvenile trials as unconstitutional, but even the most conservatives have come round to accept this view. The general societal consensus has been the basis for the Supreme Court’s citation in upholding such bans.

While most states have not enacted such legislations, capital offence charges involving minors are normally directed to the appropriate juvenile courts. Therefore the arguments for subjecting minors to full adult trials in cases involving capital punishments have been exhausted. It must be added that in developed justice and legal systems of Western Europe, there is no room for such practices.

The US should therefore equate with its developed partners by totally eliminating such law by de jure. The de facto state of current laws is that they are subject to different interpretations and thus this may give chance to violate them. The harrowing experience of a minor on a death row is not only archaic but also barbaric.

Restorative justice has time and again been used just before sentencing takes place. These programs are used when a plea of guilty has been reached. The prosecuting attorney enters in agreement with the court concerning the accused and the accused is given a chance to make final submissions. When the sentence is finally delivered, it is usually a reparative sentence that gives the guilty person lesser sentence. When diversion is involved, there is the avoidance of the prison or penitentiary institution.

The decision in offering diversion restorative justice is normally at the discretion of the court and the presiding judge may or may not grant such pleas. The district attorney must first let the court know the desire to offer such service.

According to the UN’s Training Manual on Alternative Dispute Resolution and Restorative Justice, there are 3 fundamental principles of Restorative Justice, namely;

·        Punitive actions do not always serve those interests best.

·        The primary determinants of justice are the interests of the victim, the community and even the offender.

·        Crimes are against individuals and, to some extent, communities, not against the state or “the law.”

Thus when giving a sentence the basis should lie in these principles, example applicable might be for the case of Rupert Madoff’s Ponzi scheme, even though he was sent to the prison and justice was deemed to have been done, the interests of his victims and the Community which lost in excess of $50 billion was not addressed and most of them will not get their savings back.

In November 2006, Festus Oguhebe, a Nigerian professor was sentenced to 2 years in jail for pepper spraying his child by a Hinds County Circuit Judge L. Breland Hilburn. Such a sentencing was reached despite repeated pleas from his two teenage children and wife arguing that they wanted counseling for the professor not jail terms. Such formal pronouncement of the law, while legal, is totally out of the principles of justice.  The interest of such litigation lay with the children and the community, not the state. By sending the bread winner to prison for a social vice against his child, the court not only subjected the children to double jeopardy, but it also denied the victims his right to a good life.

This is a typical situation when a restorative justice system would better deal with such a situation. In sentencing their father to jail, the presiding judge did not do justice to the children, who among them were the victim.

According to the UN’s Training Manual on Alternative Dispute Resolution and Restorative there are several philosophical roots of Restorative Justice. The first is that all human beings are capable of reforms and thus everyone convicted of a certain felony has to be evaluated on an individual basis and then a fair judgment reached on merits of having him behind the bar over freedom.

The second is that offenders should have a chance to make amends to the crimes against their victims and take responsibility. This drives their conscious to positive thinking. The third is that if an offender makes an amend, then he should be integrated into the society. The last philosophical root lies in the fact that offenders should be protected from retribution so that society as a whole does not suffer from norms of revenge-taking.

The UN publication provides 5 stages of restorative justice system. The first is the trial process. This involves determination if a crime has been committed and excludes sentencing. The second stage is the inclusive encounters of all the stakeholders. Victims, offenders, selected community representatives plus the members of the select judicial system meet to have interactive negotiations. The law enforcers are also allowed to join in the deliberations.

Stage three involves amends. All assembled individuals jointly determine what the offender has to do to repair the harm they have done. The judge mediates the process to a contract but the victim has the final word on the administration of justice.

The fourth stage is reintegration. Upon the offenders agreeing to the contract to make amends, they are restored as contributing members of the society while the victim is given the necessary form of additional assistance or therapy. The final stage involves monitoring and oversight of the reintegration contract by the state and the community.

                                       References

Fagan, J., West V. (2005). The Decline of the Juvenile Death Penalty: Scientific Evidence of

             Evolving Norms.  Journal of Criminal Law and Criminology, Volume: 95. Issue: 2.

            Page Number: 427+.

Noel L. (2010). About Juvenile being charged as Adults in Murder Charges, eHow magazine. The United Nation Office on Drugs and Crime. (2007) Training Manual on Alternative  Dispute Resolution and Restorative Justice, UN publications