FIRMES

The debate on the appropriate forum for children has prolonged for decades.125 The underlying philosophy between welfare and justice models has led to different approaches in determining the proper forum for the trial of children in criminal cases. While some legal systems prefer a separate court system for children,126 others maintain that there is no necessity to do the same.127 However, the last thirty years have shown that there is a shift in the juvenile justice approach taken by various legal systems.128 Many countries have adopted the trend to toughen juvenile justice by shifting the policy from rehabilitation to punishment.129 The “getting tough” policy for children has decreased access to the protective

125

Feld, B.C. (1999). Bad Kids: Race and Transformation of the Juvenile Court, New York: Oxford University Press, p 79.

126

Chao, R. (2005). A Commentary From Crouse to Roper: Children Continue to Deserve Separate Court. Children‟s Legal Right Journal, 25(2), p 36.

127_{Bueren, G. V., n. 73 above, p. 16.}

128_{Birckhead, T.R. (2008). The Age of the Child: Interrogating Children After Roper v. Simmons. Washington}

& Lee Law Review, 65, p 388.

129_{Backus, M.S. (2013). Achieving Fundamental Fairness for Oklahama‟s Children: The Role for Competency}

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confines of the juvenile justice system and increased the availability for them to stand for trial in adult courts.130

The CRC promotes each juvenile justice system to formulate special rules and procedures for the trial of children. It provides that state parties shall seek to promote the establishment of a special set of laws and procedures to deal with children who are alleged or accused to be in conflict with the law.131 This requirement obliges state parties to formulate special rules and procedures that will be applicable to children at any stage of the criminal proceedings. It also imposes a duty on state parties to maintain a balance between the informality of proceedings and the protection of the fundamental rights of the child. The rationale for the establishment of separate procedures for children is to cater the specific needs of children and to ensure the fulfilment of the aim of child justice. However, the CRC has fallen short of explaining the specific meaning of the requirement of separate procedure and juvenile justice system. As a result, the interpretation on this requirement is solely left to state parties. State parties are left with the discretion to formulate and decide how this requirement can be integrated and implemented in their respective national laws. Consequently, there are different practices among state parties in this respect. In pursuing this requirement, some countries have provided special procedures and a specialized court system for children.132 On the other hand, some countries maintain that there is no requirement under international instruments to establish a separate court system for children. Instead of establishing a specialized court system for children, these countries maintain that the trial of children in

130_{Jordan, K.L. and Myers, D.L. (2011). Juvenile Transfer and Deterrence: Reexamining the Effectiveness of a}

“Get-Tough” Policy. Crime & Delinquency, 57(2), p 248, Myers, D. L. (2003). Adult Crime, Adult Time: Punishing Violent Youth in The Adult Criminal Justice System. Youth Violence & juvenile Justice, 1(2), p 174.

131_{Article 40 (3) of the CRC.} 132_{Chao, R., n. 126 above, p 36.}

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normal courts is equally valid.133 In addition, there are some legal systems which allow children who commit certain criminal offences to be transferred to an adult court based on certain criteria, such as the nature of the offence or through discretion exercised by court or prosecutor.134

4.3.2.1 Trial and transfer of children to adult criminal courts

The issue of trying and transferring children to adult criminal courts is controversial. In practice, there are two conflicting views among scholars on this issue. Some scholars view this practice as justifiable, while others perceive it to be insignificant. Proponents of transferring children to an adult criminal court rely on the claim that an outdated and ineffective juvenile justice system, ineffective programs and services designed to handle children, a moral requirement, and the need to protect society validate such strong action towards children in conflict with the law.135 In addition, the inconsistent disposition of cases and the unsafe condition of child institutions are also identified as factors which attract heavy criticism on child courts.136 Apart from that, the contention that the need to respond proportionately to serious offences for the benefit of the larger community outweighs the desire to treat children as less culpable than adults is also cited as a ground to justify the transfer of children to adult courts.137

133

Parkes, A. (2013). Children and International Human Rights Law: The Right of the Child to be Heard. London:Routledge, p 158.

134_{Rossiter, M.J. (2006). Transferring Children to Adult Criminal Court: How to Best Protect Our Children and}

Society. Journal of juvenile Law, 27, p 125.

135

Kupchik, A. (2006). Judging juveniles: Prosecuting adolescents in adult and juvenile courts. New York: New York University Press, pp. 161-164.

136_{Feld, B.(1987). The Juvenile Court Meets the Principle of the Offense: Legislative Changes in Juvenile}

Waiver Statutes, 78 J. Criminal Law & Criminology, p 471, Rosenberg, I.M. (1993). Leaving Bad Enough Alone: A Response to the Child Court Abolitionists. Wisconsin Law Review, p 170.

137_{Jensen, E.L. (1994). The Waiver of Children to Criminal Court: Policy Goals, Empirical Realities, and}

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On the other hand, some scholars have heavily objected and criticized the practice of transferring children to adult criminal courts.138 This practice has not only been viewed as an inappropriate treatment of children but is also deemed contrary to the requirement of the CRC, which stresses on the need to create a separate system for children. Among the main grounds relied on by those who object this practice is the child‟s lack of adjudicative competency.139 Adjudicative competency refers to the ability of children to function effectively as criminal defendants in criminal or delinquency proceedings.140 It requires children to adequately comprehend the due process of law, which expects them to understand the meaning of the charge, the nature of the proceedings, the due process of adjudication, the procedure of the trial, as well as the ability to instruct their counsel. It is argued that children, due to their immaturity, are incompetent to be tried in adult courts.141 Therefore, the trial of children in adult courts simply amounts to a violation of their right not to be tried while being deemed incompetent. In order to support this argument, various researches indicate that children are less capable trial participants than adults due to developmental immaturity. For example, research shows that children are more likely to underestimate the likelihood of risks or negative implications, be less aware or less effective in making choices, as well as fixate on an initial possibility in the decision-making process.142 In addition, the findings of the research also reveals that children encounter difficulty in understanding the consequences of punishment and the disposal of cases by court against them.143 Some other studies disclose

138_{Sanborn , J.B. (2009). Children‟ Competency to Stand Trial: Wading Through the Rhetoric and the Evidence.}

Journal of Criminal Law & Criminology, 99(1), pp. 212-213.

139_{Backus, M.S. (2012). Achieving Fundamental Fairness for Oklahama‟s Children: The Role for Competency}

in Juvenile Proceedings. Oklahoma Law Review, 65, p 42.

140_{Scott, E.S. and Steinberg, L. (2008). Rethinking Child Justice. London: Harvard University Press, p 152.} 141_{Wingrove, T.A. (2007). Is Immaturity a Legitimate Source of Incompetence to Avoid Standing Trial in Child}

Court?. Nebraska Law Review, 86, p 503.

142_{Aronson, J.D. (2009). Neuroscience and Juvenile Justice. Akron Law Review, 42, p 922, Sanborn, Jr., J.B.}

(2009). Children‟ Competency to Stand Trial: Wading Through the Rhetoric and the Evidence. Journal of Criminal Law & Criminology, 99(1), p 151, Redding, R.E. (1997). Children Transferred to Criminal Court: Legal Reform Proposals Based on Social Science Research. Utah Law Review, p 727.

143_{Goldstein, N.E. et al. (2002). Advocating a Functional Approach to Determining Adjudicative Competency in}

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that children tend to make different decisions than accused adults,144 are unable to resist the influence of others to change their mind145 and face difficulty in comprehending the duty and role of counsel.146 Apart from that, scientific research on brain development disclosed that children and adults are developmentally different. Research findings revealed that brain development and cognitive functioning continues to grow significantly before puberty and into the early twenties.147 All these findings and theories support the rationale for a separate child system, and they reinforce the argument that adults and children should be treated differently under the law. They also irresistibly point out to the conclusion that children are less capable trial participants than adults. In contrast to adults, the reality of developmental immaturity of children deter them from adequately comprehending the due process of law. It is this adjudicative competency that justifies the need to have a separate court and procedure. Forcing incompetent children to stand trial in adult adult courts breaches the basic elements of fairness in the administration of criminal justice.

In addition, enormous negative consequences are another reason that compel many scholars to object to the transfer and trial of children in adult criminal courts.148 Unlike any child tried in child court, those who are transferred to adult criminal courts are exposed to harsher modes of punishments. The full force of adult conviction and modes of punishment such as incarceration, stricter treatment and condition may be imposed, in excess of what they

144

Scott, E.S. and Grisso, T. (1997). The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform. Journal of Criminal Law & Criminology, 88, p 160.

145_{Scott, E.S. and Grisso, T. (2005). Developmental Incompetence, Due Process, And Juvenile Justice Policy.}

North Carolina Law Review, 83, p 816.

146_{Grisso, T. et al. (2003). Children‟ competence to stand trial: A Comparison of Adolescents' and Adults'}

Capacities As Trial Defendants. Law and Human Behavior, 27(4), p 358.

147_{Blakemore, S.-J. and Choudhury, S. (2006). Development of The Adolescent Brain: Implications for}

Executive Function and Social Cognition. Journal of Child Psychology and Psychiatry and Allied Disciplines, 47(3-4), pp. 302-308.

148_{Carroll, J.E. (2010). Rethinking the Constitutional Criminal Procedure of Child Transfer Hearings: Apprendi,}

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could have received in a child court.149 The imposition of these modes of punishment, which were originally designed to address the crimes of adults, is contrary to the philosophy of juvenile justice and its objectives. In addition, children tried in an adult criminal court also may not receive the privileges afforded to those charged in a child court, such as privacy of proceedings, informality of the trial process, swiftness of sanctions, rehabilitative opportunities and others.150 Apart from that, research also indicates that a higher recidivism rate among transferred children compared to non-transferred children.151 The result of these various studies highlight that transferred children have a tendency to re-offend more quickly, at higher rates, involving more serious crimes compared to their counterparts who are tried in child court.152 Last but not least, the transfer of children to an adult court may send the wrong signal as it implies that children are not in need of the special protections and support as available under the juvenile justice system.153 This message in turn gives a negative impression that children are incorrigible, indefensible and morally inexcusable, to the extent that they are not eligible to any consideration of forgiveness or leniency in sentencing. All these negative and far reaching effects show that it is inappropriate to try children in an adult criminal court.

In short, the practice of certain legal systems which allows for the trial or transfer of children to adult criminal courts is contrary to the requirement of the CRC of juvenile justice system. Though there is no clear and absolute provision in CRC which prohibit trial or transfer of children to adult criminal courts, the disapproval of this practice can be inferred by

149_{Arya, N. (2011). Using Graham v. Florida to Challenge Child Transfer Laws. Louisiana Law Review, 71, p}

107.

150_{Klein, E.K. (1998). Dennis the Menace or Billy the Kid: An Analysis of the Role of Transfer to Criminal}

Court in Child Justice. American Criminal Law Review, 35, p 402.

151_{Johnson, K., Lanza-Kaduce, L. and Woolard, J. (2011). Disregarding Graduated Treatment: Why Transfer}

Aggravates Recidivism. Crime & Delinquency, 57(5), p 770.

152_{Lanza-Kaduce, L. et al. (2005). Child Offenders and Adult Felony Recidivism: The Impact of Transfer.}

Journal of Crime and Justice, 28(1), p 71, Fagan, J. (1996). The Comparative Advantage of Child Versus Criminal Court Sanctions on Recidivism Among Adolescent Felony Offenders. Law & Policy, 18, p 83.

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referring to the provisions which emphasize the best interest of children in any matter that affects them. At this juncture, it is also recommendable for the Committee on the CRC to specifically address and issue guideline to clear the air on this vagueness. It is hoped that the Committee would firmly and expressly recommend for the prohibition of transfer of children to adult court. Given the enormous collateral consequences that flow from the transfer, forcing children to face trial in adult courts is inappropriate and contrary to the principle of the best interest of children. This practice is obviously inimical to the best interest of the children and vehemently denies children the dignity and respect which they are due. Therefore, the practice of transferring children to adult criminal courts should be abolished.