An Analysis of Indeterminate Sentencing: Part III of III

… (cont)

Serving in Split Jurisdictions

Split jurisdiction involves both the juvenile court system and the adult criminal system allowed to have concurrent jurisdiction over a delinquent juvenile. The juvenile usually serves time in the juvenile court system until reaching the age of majority at which point the adult criminal justice system takes over. It has been historically criticized right along with the absence of legal representation for juveniles, and the lack of other due process rights granted to juveniles (Sobie, 2003). The ideology of split sentencing, or split jurisdictions, challenges the rehabilitative philosophy of the juvenile court system and focuses more on punishing the juvenile. How can a split-sentence moving the juvenile to the adult system at the age of majority predict that by the time the juvenile completes the portion of his sentence within the juvenile system that he wouldn’t already be rehabilitated and not need the transfer and punishment of the adult system? Determinate sentences that demand the transfer of a juvenile to the adult system after they reach the age of majority does not allow for a focus of rehabilitation on the juvenile. Indeterminate sentencing that evaluated the juvenile when they reached the age of majority would be more fair, and more true to the philosophy of the juvenile justice system. If the juvenile has rehabilitated by the time they reach the age of majority, then he or she can be released; otherwise, he or she can at that point be transferred to the adult system to continue an indeterminate sentence based on parole board review.

Utility of Diversion Programs

There are mixed reviews on the effectiveness of diversion programs–some studies show positive impact, some report no impact and some report negative impacts. With such variation it is hard in this early stage of evaluation to declare the utility of diversion programs. In 1977 one researcher “found that although persons who were diverted had lower rates of recidivism than was true for persons who received a court petition, their rates were also higher than those released outright without any form of service.” (Sharp & Hancock, 1998, p. 336).

Much of the negative reports on the utility of diversion programs, however, stem from the fact that they are studying diversion programs that have strayed from the original conception. Diversion programs were meant to “divert” juveniles away from the juvenile justice system and into alternative methods of treatment and rehabilitation. The stressful and often times traumatic experiences of being involved in the justice system, even the juvenile justice system, can therefore be avoided. However, many diversion programs are being conducted within the juvenile justice system and therefore are considered to not only circumvent the original purpose of diversion but also have been said to “widen the net” of social control for juveniles. (Sharp & Hancock, 1998).

Positive reports on diversion programs outside the justice system, those that work the way the programs were intended, show promising results. Often times rates of recidivism are dramatically reduced and positive behaviors are witnessed from the juveniles involved. It is still too early to make a conclusive final statement as to the utility of diversion programs; research must continue and programs need to continue to evolve while they learn what works and what doesn’t.

Conclusion

My recommendation is somewhat borrowed from the Wingspread Conference held in 1977. A Northeastern University college professor quoted Plato before validating her distrust in determinate sentencing: “There are two kinds of injustice: treating equals unequally and treating unequals equally.” (French, 1977, p. 13). She made the further point that the failure of the criminal justice system in controlling crime was not a fault of the sentencing system, but instead: “Crime pays because too many people get away with it . . . What we need, obviously, is to concentrate on the certainty of apprehension at least as much as on the certainty of doing a minimum number of years.” (French, 1977, p. 13). She further solidified her opinion by contending that determinant sentencing would itself produce injustice. Dr. Flynn believed that determinate sentencing would “change the emphasis of the entire criminal justice system from seeking workable alternatives to incarceration to incarceration itself; and that at a time when prisons are already overcrowded, prison staffs overtaxed, and the conditions at many institutions deteriorating” (French, 1977, p. 13).

Dr. Flynn was referring to determinate sentencing for adults, as well as the conditions of adult prisons in 1977; however, her arguments are applicable to determinate sentencing for juveniles today. Determinate sentencing leads to punitive treatment of juveniles who should be receiving care and rehabilitation in order to not end up in the adult criminal justice system. Indeterminate sentencing allows for individualized treatment for each offender, has a better chance to put the juvenile on the right track for the future, and encourages cooperation and rehabilitation in offenders. My recommendation is to adopt the exclusive use of indeterminate sentencing for all juveniles found delinquent; however, determinate sentencing should remain in place for status offenders only.

Works Cited

Bureau of Justice Assistance. (1998). 1996 National Survey of State Sentencing Structures. Rockville: National Criminal Justice Reference Service.

French, R. (1977). Criminal Sentencing Alternatives. A Report of a Wingspread Conference., (p. 35). Racine.

Gewirtz, M. (2007, April). Recidivism Among Juvenile Offenders in New York City. Retrieved May 9, 2009, from New York City Criminal Justice Agency Research Department: http://www.cjareports.org/reports/jorecid0407.pdf

McCarthy, T. (1997). Correction’s Katharine Bement Davis: New York City’s Suffragist Commissioner. Retrieved May 9, 2009, from Correction History: http://www.correctionhistory.org/html/chronicl/kbd/kbd_14.html

Norval Morris, M. H. (1991). Between Prison and Probation. New York: Oxford University Press.

O’Connor, C. (2008). A What Works Wisconsin Fact Sheet. Madison: University of Wisconsin.

Sharp, P. M., & Hancock, B. W. (1998). Juvenile Delinquency: Historical, Theoretical, and Societal Reactions to Youth. Upper Saddle River: Prentice-Hall.

Sobie, M. (2003, March). The Family Court: A Short History. Retrieved May 9, 2009, from New York State Unified Court System: http://courts.state.ny.us/history/family_ct/History_Fam_Ct.htm

Utah Sentencing Commission. (2006). A Statement Regarding Utah’s. Salt Lake City: Utah Sentencing Commission.

Wikipedia. (2009, April 26). United States Federal Sentencing Guidelines. Retrieved May 9, 2009, from Wikipedia: http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines

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