By John Maki | Juvenile Justice Information Exchange | February 12, 2014
In juvenile justice advocacy, we don’t like to talk about retribution, the principle that people who break the law deserve to be punished in proportion to their offenses.
This is for a good reason. It is not just the fact that it is cruel for the state to hurt kids, even if it is sanctioned by some theory of moral desert. At its core, the juvenile justice system rejects the primacy of this idea.
The founding premise of the juvenile justice system is not to define kids by their past actions and punish them as if they were adults, but to look toward their possible future and how they can develop beyond the worst thing they have done.
This commitment to rehabilitation is the most important feature of the juvenile justice system. The more effectively we embody it in our laws and policies, the better results we will create for kids and for public safety.
At the same time, it is a mistake to believe that even the most perfect rehabilitative system could ever extinguish our collective need for retribution.
The justice system serves many masters, with different and competing interests. While rehabilitation is a powerful argument to drive reform, it cannot address what is ultimately the cornerstone of any system of punishment — the desire for people who break the law to get what they morally deserve.
As juvenile justice advocates, we don’t know how to speak to this need, or perhaps we believe that if we focus our efforts solely on promoting rehabilitation we can redirect discussion away from retribution, which many of us find uncomfortable, distasteful and even illegitimate.
In our lives, the things we try hardest to deny or reject about ourselves often end up having the most power over us. So it is with retribution. By failing to recognize the essential role retribution plays in the juvenile justice system, we help create an environment that leads to more hurtful and unnecessarily punitive laws and policies.
Perhaps the clearest example of this dynamic is how our juvenile justice system handles kids who commit the most serious offenses.
When a young person is accused of a particularly high profile and violent crime, there is often discussion about whether he or she should be transferred out of the juvenile justice system, the assumption being that real punishment only happens in criminal court and ultimately inside the four corners of a prison cell.
In most states, this assumption is so strong that the law vests the transfer power in prosecutors or determines that certain juvenile offenders will automatically be transferred into the criminal justice system.
The problem with this way of thinking about juvenile crime is that it rests upon a false dichotomy — that either we rehabilitate troubled kids in the juvenile system, or we use the adult system to meet the demands of retribution.
There is an advocacy opportunity in these cases, which is often lost, not only to point out that even the most rehabilitative juvenile justice system is still an effective instrument of punishment, but also to emphasize the lasting harm that adult-style incarceration can inflict upon young people.
Science has taught us that long-periods of incarceration can stunt a young person’s natural biological and social development, which will make it harder for him or her to grow up to be a productive adult. Even when a kid commits a serious crime, is this kind of punishment proportionate to his or her offense?
This is not just an argument for rehabilitation, but also for the legitimate exercise of retribution.
Let me be clear. I’m not suggesting that retribution is a good or bad thing. What I’m saying is that retribution will always drive justice law and policy, regardless of how we feel about it.
To create better results for justice-involved kids, particularly for those who commit the most serious offenses, who are also almost always the ones in most need of treatment and care, the question we should be asking is not how do we vanquish retribution from the juvenile justice system, but how do we inform the consensus about what kind of punishment young offenders deserve.