tep in the Wrong Direction Juvenile JusticeTHESIS STATEMENT: The Great and General Court of Massachusetts has erred in reforming the juvenile justice system by implementing policies and procedures that will harm juveniles and place society at risk. On July 23, 1995, an intruder brutally attacked and stabbed Janet Downing approximately 100 times in her Somerville home. The revolting Downing murder and ensuing arrest of Edward O’Brien Jr., a 15-year-old juvenile whom prosecutors say committed the heinous crime, sent shockwaves through the state. When Somerville District Court Judge Paul P. Hefferman ruled that the Commonwealth try Mr. O’Brien as a juvenile, those shockwaves grew in intensity, and the citizens of Massachusetts, fed up with increasing youth violence and perceptions of an ineffective juvenile justice system, demanded the enactment of tough new laws to deal with repeat and violent juvenile offenders. The Great and General Court of Massachusetts headed these demands for reform of the juvenile justice system and enacted legislation that, among other things, abolishes the trial de novo system in the juvenile courts, requires the trial of juveniles charged with murder, manslaughter, aggravated rape, forcible rape of a child, kidnaping, assault with intent to rob or murder and armed burglary in adult court and permits prosecutors to open to the public juvenile proceedings when they seek an adult sentence. Although proponents tout these measures as a sagacious solution for the vexatious problem of juvenile delinquency, abolishing the trial de novo system, providing for automatic adult trials and opening juvenile proceedings to the public when prosecutors seek an adult sentence works to the detriment, not the benefit, of juveniles and society. Therefore, the policy makers of Massachusetts should repeal most sections of the Juvenile Justice Reform Act and develop other policies to deal with the rising problem of juvenile crime. I. A SINGLE TRIAL SYSTEM PREVENTS COURTS FROM PROVIDING RAPID ASSISTANCE TO JUVENILES IN NEED, DOES LITTLE TO SERVE JUDICIAL ECONOMY AND PLACES A SIMILAR BURDEN AS THE DE NOVO SYSTEM ON VICTIMS AND WITNESSES. Proponents of a single trial system for juveniles argue that the trial de novo system wastes judicial resources by giving defendants a second bite at the apple and traumatizes victims and witnesses by forcing them to testify at two proceedings. However, these proponents fail to acknowledge that the de novo system allows judges to quickly provide juveniles with the rehabilitative help they need. The proponents, unsurprisingly, also fail to acknowledge that a single trial system may place a greater burden on judicial resources and a similar burden on victims and witnesses. The de novo system benefits juveniles by encouraging bench trials, which frequently result in the swift administration of rehabilitative help. For many juveniles, delinquency is a reaction to a variety of situational stressors. Statistics indicate that the vast majority of juvenile delinquents are exposed to abuse and neglect, harsh or erratic parenting, and socioeconomic deprivation. Experts believe that if the juvenile justice system is to rehabilitate juveniles and make them productive members of our society, it must address these problems as swiftly as possible. A de novo system encourages juveniles, many of whom want judicial help, to request a bench trial. Likewise, under a de novo system, defense attorneys are encouraged to recommend an initial bench trial because the court’s decision does not bind clients if it is not in their interest.On the other hand, a single trial system discourages juveniles and defense attorneys from requesting a bench trial.Because jury trials are more lengthy than bench trials and may drag out for over a year, the current policy of encouraging juveniles to seek an initial jury trial denies them the rehabilitative help they need for a significant period of time. Therefore, the de novo system is the preferred choice when dealing with juveniles because it encourages bench trials and, concomitantly, the swift administration of rehabilitative help. As noted earlier, one of the primary arguments for doing away with the de novo system is that it wastes judicial resources. However, upon closer examination one realizes that the de novo system actually furthers judicial economy. Under a de novo system, procedural safeguards can be done away with or relaxed at bench trials without fear of violating rights of defendants. Courts have found the elimination of procedural safeguards at bench trials in a de novo system to be constitutional because the judiciary will extend all safeguards to the defendant at a new jury trial if he/she so chooses. Although no statistics could be found which indicate the number of defendants appealing de novo bench trial decision, a court employee estimates that it was around 3%. Thus, 97% of juvenile cases were disposed of through bench trials, which are less costly and time consuming than jury trials.While 3% of the cases resulted in two proceedings, the value obtained from bench trials appears to significantly outweigh the costs incurred by appeals. Therefore, the de novo system may actually further judicial economy more than a single trial system. The other primary argument for a single trial system is that making victims and witnesses testify at two trials is unfair. The 3% estimate that the de novo system requires that victims and witnesses testify at two trials very infrequently. Furthermore, replacing the de novo system will not eliminate the need for requiring some victims and witnesses to testify at two trials. Appellate courts have the power to reverse a trial court’s decision and order a new trial. In cases where the trial court’s decision is reversed, victims and witnesses must testify again. Given the strong state interest in reforming juveniles, protecting society and conserving judicial resources and the fact that a one trial system also requires some victims and witnesses to testify twice, the burden placed on witnesses and victims by the de novo system cannot be considered unreasonable. In sum, the de novo trial system better suits the needs of juvenile offenders, society and the court system for several reasons. First, under the de novo system, judges can expeditiously provide the rehabilitative help that juveniles need. Secondly, the de novo system does not appear to burden judicial economy. In fact, despite proponents’ claims to the contrary, the evidence appears to indicate that a de novo system actually furthers judicial economy. Finally, although a slight burden is placed on those victims and witnesses who are forced to testify at two proceeding, this burden exists in a one trial system and is outweighed by the strong state interest in rehabilitating juveniles, protecting society and conserving judicial resources. II. AUTOMATICALLY TRYING JUVENILES CHARGED WITH MURDER, MANSLAUGHTER, AGGRAVATED RAPE, FORCIBLE RAPE OF A CHILD, ASSAULT WITH INTENT TO ROB OR MURDER AND ARMED ROBBERY CONTRADICTS THE NOTIONS UPON WHICH THE JUVENILE JUSTICE SYSTEM WAS FOUNDED AND, ULTIMATELY, PLACES SOCIETY AT RISK. Besides eliminating the de novo system, the Juvenile Justice Reform Act also provides for the automatic trial of juveniles charged with murder, manslaughter, aggravated rape of a child, assault with intent to rob or murder and armed robbery in adult court. The automatic trial provision is unnecessary in light of new procedures that provide for a post-trial amenability to rehabilitation determination. Moreover, automatically treating certain juveniles as adults goes against the traditional purposes of the juvenile system, and, ultimately, poses a greater risk to society when correctional authorities release the offender. The provision providing for automatic trial in adult court of juveniles charged with murder, manslaughter, aggravated rape of a child, assault with intent to rob or murder and armed robbery in adult court is unwarranted in light of additional provisions contained within the Juvenile Justice Reform Act that eliminate pretrial transfer hearings and replace them with post-trial amenability to rehabilitation hearings.Scott Harshbarger, the Attorney General of Massachusetts and author of the Juvenile Justice Reform Act, states that the automatic transfer provision is necessary to address the “the time-consuming and burdensome nature of the transfer hearing process.” In other words, Mr. Harshbarger advocates treating juveniles as adults in certain cases because it is too much of a bother to conduct a pretrial hearing to determine whether the juvenile is amenable to rehabilitation. Mr. Harshbarger’s position is especially confusing in light of the provision in the Juvenile Justice Reform Act that supplants pretrial transfer hearings with post-trial amenability to rehabilitation hearings. Under the new system, the legislature has eliminated pretrial transfer hearings in juvenile court and mandated that the court hold trials first. If the juvenile is found guilty at the trial, the court holds a post trial amenability hearing in conjunction with the sentencing heating. Once the court makes a determination as to whether the juvenile is amenable to rehabilitation, the judge can impose three possible sentences: (1) an adult sentence; (2) a juvenile sentence; or (3) commit the juvenile to the Department of Youth Services until he/she reaches the age of twenty-one. As the legislature has eliminated the burdensome nature of the transfer process, Mr. Harshbarger’s rationale for the automatic trial provision makes no sense. Moreover, the adult trial provision effectively denies juveniles charged with certain crimes rehabilitation opportunities and defies common sense by transferring juveniles out of the juvenile system where an adult sentence may be imposed by a judge who is familiar with the needs of juveniles to the adult criminal system where judges are not familiar with the needs of juveniles. In addition to being unnecessary in light of the elimination of transfer hearings in the juvenile justice system, the automatic trial provision contradicts the traditional philosophy of the juvenile justice system. The fundamental principle upon which the founders based the juvenile justice system is that juveniles are different from adults and need different treatment. Throughout its history, the juvenile justice system has strived to uphold this principle by providing benevolent and less formal means than adult courts for dealing with the unique problems of juvenile offenders. For instance, juvenile courts typically subscribed to the philosophy of rehabilitation, rather than punishment, and closed proceedings to the public to protect juveniles from harmful stigma. Massachusetts, in providing for the automatic trial in adult court of juveniles charged with certain crimes, moves away from the traditional benevolent, rehabilitative philosophy of the juvenile justice system and toward a retributive or “just desserts” philosophy. Critics dismiss this contention, stating a judge in the adult court still has the authority to impose a juvenile sentence on the offender. However, given the adult criminal court’s goal of punishment and lack of experience with juveniles, a judge is likely to impose a juvenile sentence only in the rarest of cases. Moving away from the traditional philosophy of the juvenile justice system by automatically treating certain juveniles as adults increases their propensity for crime and increases the risk to society. Studies indicate that juveniles tried as adults typically do not receive longer or more severe sentences than those juveniles tried in the juvenile court. The studies also suggest that juveniles tried as adults have a higher rate of recidivism than those juveniles with like profiles who are charged with similar offenses and tried in the juvenile justice system.The higher rate of recidivism for juveniles tried as adults is likely the result of their being released into society undereducated, unsocialized, unemployable and in their physical prime. In other words, the adult criminal system sets juveniles up for failure by making them into the very model of what we wish to avoid. Therefore, if one truly values public safety, he/she should not support automatic transfers to adult court for certain juveniles because they will eventually return to society and, in most cases, to crime. To recap, the automatic trial as adult provision contained within the Juvenile Justice Reform Act is unnecessary, contradicts the traditional notions of the juvenile justice system and jeopardizes public safety. The abolishment of transfer hearings and creation of post-trial amenability hearings has eliminated the need for automatic transfer to a court. Additionally, the adult transfer provision counters the benevolent, rehabilitative philosophy of the juvenile justice system by shipping juveniles whom society can rehabilitate to the punishment oriented adult criminal court. Finally, the policy of treating juveniles as adults is likely to backfire because they eventually return to the streets undereducated, unsocialized, unemployable and in their physical prime, which often results in a return to a life of crime. III. OPENING JUVENILE PROCEEDINGS WHERE PROSECUTORS SEEK AN ADULT SENTENCE IS UNFAIR TO JUVENILES WHO RECEIVE JUVENILE SENTENCES AND RESULTS IN HARMFUL STIGMATIZATION.Under the reformed juvenile justice system a prosecutor can seek an adult sentence for a juvenile via two methods. The first, called direct file, permits the prosecutor to file the complaint in adult court. If the prosecutor pursues this method, the state tries the youth in adult court and the proceedings are open to the public. The second, and more troublesome method, allows the prosecutor to try the juvenile in juvenile court and seek an adult sentence there. These proceedings are also open to the public and are unfair to juveniles who do not receive an adult sentence. Furthermore, opening juvenile proceedings to the public stigmatizes juveniles as criminals for the rest of their lives. The section of the Juvenile Justice Reform Act that allows the opening of juvenile hearings to the public where an adult sentence is sought will expose some juveniles to public scrutiny even though they ultimately receive a juvenile sentence. Currently, a Massachusetts prosecutor has the option of opening juvenile proceedings to the public by seeking an adult sentence. Although prosecutors seek an adult sentence, the judge still has the discretion to sentence the offender as a juvenile after a post-trail amenability to rehabilitation hearing. Thus, it is entirely possible and probable that a number of cases in juvenile court which result in a juvenile sentence will be open to public scrutiny. Such a system is unfair because it allows prosecutors to throw open the doors of secrecy in juvenile court even if there is little chance of an adult sentence being imposed. Opening juvenile proceedings to the public also results in juveniles carrying around the taint of criminality which may lead to recidivism. Generally, proceedings in juvenile court have been closed to the public and press to prevent the stigmatization of minors and encourage rehabilitation. Allowing prosecutors to open juvenile judicial proceedings to the public will undermine rehabilitative efforts by creating a self-perpetuating stigma of delinquency, placing an accompanying stigma on family members, which could impair the juvenile’s familial relationships, encouraging youths to commit crimes for publicity or attention and contributing to a deterioration in the juvenile’s interaction with his peers, the educational system and the surrounding community. Because prosecutors are frequently unconcerned with the interests of juveniles and cater to public sentiment, the decision to open juvenile judicial proceedings should be left in the hands of an impartial decision maker. To summarize, prosecutors should not have the option to open juvenile proceedings where they seek an adult sentence to the public because it is unfair to juveniles who receive juvenile sentences and undermines rehabilitative efforts. Opening hearings to the public in juvenile court when the prosecutor seeks an adult sentence will result in some cases being held subject to public scrutiny even though the judge imposes a juvenile sentence. Such an arrangement is unfair to juveniles who are amenable to rehabilitation in the juvenile system. Additionally, opening juvenile hearings to the public is likely to undermine rehabilitative efforts by creating a self-perpetuating stigma of delinquency, placing an accompanying stigma on family members, which could impair the juvenile’s familial relationships, encouraging youths to commit crimes for publicity or attention and contributing to a deterioration in the juvenile’s interaction with his peers, the educational system and the surrounding community. Therefore, prosecutors should not have the power to open juvenile court proceedings to the public by seeking an adult sentence. IV. CONCLUSION AND RECOMMENDATIONS The Massachusetts Great and General Court, in attempting to reform the juvenile justice system, has embarked upon a noble and worthwhile endeavor. However, the reforms instituted by the legislature are the product of faulty perceptions and erroneous beliefs rather than informed policy making. If the citizens of Massachusetts are truly interested in changing the juvenile justice system for the better, it is not too late to petition the legislature to repeal and amend the detrimental sections of the Juvenile Justice Reform Act. The citizens of Massachusetts could also contact their representatives and ask them to introduce new legislation that benefits both juveniles and society.One may wonder that if the Juvenile Justice Reform Act is bad public policy, what policies should be implemented to reform the juvenile justice system. Perhaps the first step our legislature should take is to implement preventative programs, such as parenting classes, after school and summer athletic programs and academic intervention, to keep juveniles from entering the juvenile justice system in the first place. Not only are such interventions and programs effective, they are also cheaper than incarceration. The average yearly cost of incarcerating a juvenile ranges from $35,000 to $64,000. On the other hand, the average cost of academic intervention is approximately $4,300 and a year at Harvard costs $30,000. Therefore, for the amount that it takes to incarcerate one juvenile for a year, the Commonwealth could prevent approximately 14 juveniles from entering the juvenile justice system. In addition to implementing preventative programs, Massachusetts should examine the rehabilitation programs and measures of other states and adopt those that are effective. Although most states have moved toward recognizing punishment and accountability as the goals of the juvenile justice system, no state has entirely eliminated the philosophy of rehabilitation. Many of these states have proven rehabilitation programs and measures in place. For instance, Utah has founded the Intermountain Specialized Abuse Treatment Center in Salt Lake City to rehabilitate juvenile sex offenders, and California has established boot camps for juvenile delinquents. By examining the rehabilitation programs of other states and adopting those that are effective, Massachusetts could design a new and successful rehabilitation system for juveniles. A third and more practical possibility is that Massachusetts could increase funding to its existing juvenile rehabilitation system. In 1989, the Massachusetts Department of Youth Services, an agency devoted to helping youths choose productive, crime-free lives, while keeping the public safe, was named the best juvenile agency in the United States by the National Council on Crime and Delinquency. However, several years later the Department of Youth Services came under fire when several youths in its custody died, and a youth who was away without leave participated in a double murder. Officials at the Department of Youth Services maintain that the agency has fallen into disarray as a result of budget cuts and overcrowding. Thus, by increasing the budget of the Department of Youth Services, the Commonwealth can restore the agency to its former prominence and, at the same time, add vitality to the philosophy of rehabilitation in the juvenile justice system.