Back to justice for juveniles: The rhetoric and reality of law reform

Abstract

Motivated by growing doubts about the value of a welfare approach towards the processing of young offenders, law reformers in recent years have advocated a shift towards more traditional “justice” principles. This article examines the rhetoric of the “back to justice” trend in one Australian State, South Australia, where in 1976, a Royal Commission into juvenile justice argued in favour of a system which, at least at the adjudication stage, was based firmly on the notions of adversarial justice and due process. Central to this traditional approach is the trial where accused persons invoke their rights by pleading not guilty and putting the prosecution to the test. Yet, as this article demonstrates, the overwhelming majority of young persons in South Australia forego these rights by admitting the allegations made against them. Thus the rhetoric of adversarial justice and the Due Process Model is incompatible with the reality of the routine admission of guilt.

The new removals: Aboriginal youth in the Queensland juvenile justice system

“…The justice model has removed many post-adjudication discretions and has located the trial at the symbolic centre of the juvenile justice system (Naffine et al, 1990). In so doing it blinds itself to the discretion exercised by police on where to focus their attention, on who to charge and with what (see Hudson, 1987: 114).…”

The Production of Guilt in the Juvenile Justice System: The Pressures to ‘Plead’

“…During the seven year period from July 1979 to June 1986, some 60.2% of youths apprehended by police in South Australia were given the option of appearing before an aid panel, rather than coming before the children's court (Naffine, Wundersitz and Gale 1990). Very few youths chose to surrender this option by not admitting guilt.…”

“…Although the presence of aid panels is a structural factor which contributes to the decision to plead guilty, the existence of these informal mechanisms cannot entirely account for the high rate of guilty pleas in the South Australian juvenile justice system. Even amongst those youths who have no option but to appear before the children's court, it has been estimated that, on average, 87% eventually plead guilty (Naffine, Wundersitz and Gale 1990). The question is 'why'?…”

“…Although these studies have focussed exclusively on the adult jurisdiction, there is considerable evidence to indicate that the rate of guilty pleas is equally high within the juvenile justice system. In South Australia, for example, it has been estimated that some 95% of all youths apprehended by police admit the allegations made against them (Nafine, Wundersitz and Gale 1990). This prompted us to consider whether there are pressures applied to children to admit guilt and, if SO, whether these prcssurcs arc similar to those identified in the adult jurisdiction by other researchers.…”

“…In England, for example, Cotterrell (1984) has observed of the magistrates' courts, which process the bulk of cases, that 'The impression is one of "conveyor belt justice" ' (p. 170). In Australia, O'Malley (1983) has argued, even more astringently, that 'in criminal courts adversary procedure is an ideological facade. The reality is a process in which courts operate on the assumption that the defendants are guilty, and in which the processing of individual cases is routinised and simplified in violation of due process in order to maximise the speed of case dispositions ' (p. 127).…”