OP-ED: Why Juvenile Justice Advocates Shouldn’t Ignore Retribution

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John MakiIn 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.

John Maki is the executive director of the John Howard Association, Illinois' only juvenile and adult prison watchdog.

6 thoughts on “OP-ED: Why Juvenile Justice Advocates Shouldn’t Ignore Retribution

  1. it is true that we need to break out of the false dichotomy that has plagued juvenile justice reform efforts for years. it is not true that we don’t know how to talk about it, as this issue is well addressed by concepts included in the balanced/restorative justice approach – a focus on accountability, meaningful competency/skill development, and community protection – and thinking about community justice concepts that consider offenders, victims, and community as important customers. Polling reinforces that the vast majority of people believe youth can change – they also believe in accountability that does not have to be equated with punishment. If the point is we need to find ways to talk about juvenile justice that don’t lock us into the simplistic punishment v. rehabilitation argument, no problem. But, we don’t have to look far to find the concepts and language that gets us there.

  2. Richard Wershe Jr is serving a LIFE sentence for one *non-violent* drug charge he received as a minor (17 years old) back in May of 1987. Three years prior Rick was recruited by Federal agents and Detroit police as a teenage undercover informant in Detroit’s dangerous drug underworld. Rick’s release is long overdue!!

    http://www.thefix.com/content/story-white-boy-rick-richard-wershe-detroit-corruption70041?page=all

    http://www.deadlinedetroit.com/articles/6448/steve_fishman_parole_board_lacks_guts_to_free_white_boy_rick#.UkjCD8c0_Mg

    http://www.detroitsports1051.com/drewlanepodcast/2014/01/15/white-boy-rick-from-oaks-correctional-facility#.UvLCVmYo7IU

    http://www.deadlinedetroit.com/articles/7589/from_243_miles_away_white_boy_rick_will_hold_a_holiday_fundraiser_for_the_needy#.UrIXVWYo7IV

    http://www.theoaklandpress.com/general-news/20130713/lake-orion-polices-tactic-of-using-child-informant-brings-back-memories-of-white-boy-rick-case?viewmode=fullstory

    https://www.facebook.com/freewhiteboyrickwershe
    http://www.change.org/petitions/free-white-boy-rick-wershe
    http://freerickwershe.com/Home_Page.html
    https://twitter.com/freerickwershe

    Letter from Ex Detroit cop -> https://sphotos-a-iad.xx.fbcdn.net/hphotos-frc1/76647_10151152598368558_295049953_n.jpg

    Letter from a former Federal agent who worked with Rick:
    Page 1: https://fbcdn-sphotos-e-a.akamaihd.net/hphotos-ak-prn2/9311_10151152598418558_1532565032_n.jpg
    Page 2: https://fbcdn-sphotos-g-a.akamaihd.net/hphotos-ak-ash2/552411_10151152598473558_1538415208_n.jpg
    Page 3: https://fbcdn-sphotos-d-a.akamaihd.net/hphotos-ak-prn2/197393_10151152598523558_1957473128_n.jpg
    Page 4: https://fbcdn-sphotos-h-a.akamaihd.net/hphotos-ak-prn1/400232_10151152598273558_1473341454_n.jpg

    http://articles.latimes.com/1991-05-23/news/mn-3263_1_detroit-police
    http://www.nytimes.com/1991/02/12/us/detroit-police-chief-and-former-deputy-charged-with-theft.html
    http://www.nytimes.com/1992/05/08/us/former-detroit-police-chief-convicted-of-embezzlement.html

  3. John Lash–Thanks for reading and commenting on my op-ed.

    My own two cents: While I think a desire for retribution is a necessary part of any society and system of punishment, it’s clear that what a society considers legitimate retribution is always subject to change. In a profound sense, unlike other justifications for punishment (rehabilitation, incapacitation, and deterrence), retribution is a kind of tentative and fragile consensus that stems from how we think about a lawbreaker’s culpability, the harm he or she causes, but also, more fundamentally, how we value human life and suffering.

    In my opinion, “a restorative approach that includes victim rights and offender accountability might meet the need for justice and fairness that underlies the desire for retribution.” But to do this, I think we have to use this approach to engage the desire for retribution on its own terms–otherwise we end up just talking to ourselves and folks who already agree with us.

  4. The response to punishment is theoretically justified by retribution, deterrence, rehabilitation, incapacitation, or restitution. But whichever justification the court is operating under, the social force that actually shapes the form of punishment is economics. So far, any goal that has been put forward has been shortchanged by the politicians who still refuse to adequately fund the juvenile justice system. No matter what we want to do, we are going to fall short of our goals until we decide we want to pay for them.

  5. Mr. Maki’s reference to “false dichotomy” is an important clarification at the heart of one the challenges of juvenile law. I believe part of the solution is to find value in retribution.
    Example: young man takes baseball bat to bricked-in mailbox. The property owner spent time and money on the now pile of rubbish: offense classifications and plea deals as an institutional response can ring pretty hollow for the parties and the community who walk/drive by that pile.
    If the part of the perp’s fine is $50 bucks for more bricks and their community service includes the summer doing yard and repair work aren’t both the restorative and the punitive served?

  6. I wonder if a restorative approach that includes victim rights and offender accountability might meet the need for justice and fairness that underlies the desire for retribution. I know this is a long term proposition, and that the heroic aspects of retribution are quite entrenched in our culture. I think over time a larger number of people can be convinced that detention for safety and rehabilitation makes more sense, and that facing your victim and being held personally accountable to individuals instead of the state isn’t an easy way out.