OP-ED: Why Juvenile Justice Should Engage Retribution

Last month, I argued in a JJIE op-ed that when advocates ignore the fundamental role retribution plays in the juvenile justice system, we inadvertently help create an environment that leads to more hurtful and unnecessarily punitive laws, policies, and practices.

I have received some helpful feedback and criticism, and I’d like to respond to some of it below.

My argument is grounded in four basic assumptions:

1. While the founding premise of juvenile justice is to rehabilitate and hold kids accountable in age-appropriate ways, it is impossible to rid the system of a primal retributive influence, which most people, from elected officials to ordinary citizens, believe to be essential.
2. Although retribution and punishment are often used interchangeably, they are not the same thing. At its core, retribution is about asking the question what kind of punishment do people deserve when they break the law. And while retributive slogans have been used to justify the most severe kinds of punishment (“Do the crime, do the time”), a retributive framework could also be used to critique to them.
3. In principle, rehabilitation and retribution may seem to contradict each other, but in practice they co-exist and co-determine the juvenile justice system.
4. To improve outcomes for all justice-involved youth, advocates should not only promote rehabilitation, but also be able to effectively address retribution.

Perhaps I have a narrow view of the juvenile justice system. As head of the John Howard Association, Illinois’ only non-partisan juvenile and adult prison watchdog, I spend most of my time thinking about what happens in Illinois’ correctional facilities and working with elected officials either to reform our justice system or, as is more often the case, to counter initiatives that would increase our use of incarceration. And when I think about how laws and polices are made and how they affect kids and their families, I don’t know how it’s possible not to recognize a severely punitive influence, which is often unchecked by the explicit rehabilitative mission of my state’s juvenile justice system.

Now I’m not suggesting that juvenile justice advocates are blind to retribution’s power, but I do think typical responses are often insufficient and sometimes deeply problematic.

When juvenile justice addresses retribution, it tends to reject its legitimacy by either correctly stating that this system was established in opposition to adult-style punishment, or by pointing to alternative practices and policies that are intended to replace retributive punishments.

These strategies are important. They remind us that the primary goal of juvenile justice should always be to treat justice-involved kids like kids in ways that help them develop into law-abiding adults.

At the same time, these approaches have serious limitations. On the one hand, by rejecting retribution, they have net-widening potential, encouraging stakeholders to use the juvenile justice system as a principal vehicle to deliver social services, mental health care and drug treatment and to address low-level delinquency—when, in fact, social welfare agencies are far better suited to do so On the other hand, approaches that categorically reject retribution are particularly ineffective when it comes to addressing the laws, policies, and practices that affect kids accused and convicted of serious offenses.

Take, for instance, laws that either mandate or give law enforcement discretion to transfer juveniles into the adult system. One of the challenges in advocating for transfer reform is that in a perverse way these laws accept the rehabilitative framework of juvenile justice—that young people are entitled to different treatment than adults—which is precisely why they turn kids into adults and place them in the criminal justice system to be punished.

While severe punishments like transfer laws are misguided and unnecessarily punitive, they attempt to address the most important and fundamental questions our society asks the justice system to answer: How should we respond when someone seriously endangers or harms another person? What kind of punishment do they deserve?

These are questions about retribution. And while they stem from a primitive desire—an eye for an eye mentality—that has justified the worst kinds of punishment, the answers we come up with depend upon a consensus about what’s fair, which is always subject to change.

There’s something irreducibly democratic about retribution—which distinguishes it from all other justifications of punishment. Advocates can be part of this consensus, persuading people to reexamine and change their minds about the kinds of punishments young people deserve, but this effort requires us, at least in part, to engage retribution on its own terms.