In the case of juvenile offenders, imprisonment while awaiting trial involves the greatest dangers, for its effects may be as disastrous as those of imprisonment after sentence. The trial also involves very serious dangers. In the corridors and waiting-rooms of the law-court, the juvenile offender is kept awaiting the hearing of his case. He sees there many things new to him. He hears the conversation of the witnesses and of the other accused. He receives advice as to his bearing in the dock. A public trial is not in the least adapted to induce in the juvenile offender a sense of shame, or to awaken in him the consciousness that he has taken a wrong path. As far as he understands the matter, an imposing apparatus is at work in a fine big room; the officials of the court do their work in a cool and businesslike manner, and with an air of importance. In the court there are a number of persons drawn to the place by curiosity simply, and among these are the old associates of the accused, who watch his behaviour with an eager interest, and regard his youthful misdemeanours[244] with indifference, or even with admiration. He feels himself to be the hero and the central figure of a drama, and this makes it even more impossible for him to follow the legal proceedings attentively, and to defend himself in a proper manner. When the trial is over, the newspapers are full of his case. If he is set at liberty he immediately becomes the centre of an admiring circle of his former associates, who listen to his words with eager attention, and encourage him to relate again and again, and with many exaggerations, the incidents of his case.
Proposed Reforms.—Gradually the idea gains ground that in the case of juvenile offenders the procedure should be totally different from what it is in the case of adults. The principal reforms that are proposed are the following.
(a) In the case of juvenile criminals it is indispensable to do away with personal freedom. The leading principle of our penal procedure, namely, to safeguard individual liberty, is out of place in the case of juvenile offenders.
(b) To-day, owing to defective understanding of the psychology of children, the authorities regard juvenile offences as extremely serious. It is held that every child that is brought before the courts is of necessity corrupt. But it is not by any rigid legal code, but rather by the principles of expediency, that we should be guided in the case of juvenile offenders; that is to say, in the case of petty offences, committed by young persons, the latter should never be brought before the law courts at all. The objection that on general legal principles an even-handed justice is absolutely essential, is so far sound, that there is undoubtedly a danger lest the authorities should refrain from initiating proceedings against the children of persons of influence, whilst letting the law take its course when the offenders’ parents are people of no importance. But this objection can also be overcome. The principle of expediency can, in addition, be applied in the following manner: the prosecuting authority allows a period of probation to elapse before proceedings are initiated, and if the youthful offender continues to behave well, the prosecution is altogether dropped. In the case of juvenile offenders, legal prosecution is not of much importance. The judge or[245] magistrate would need the powers and capabilities of an inquisitor, for if he is to decide rightly, he must be acquainted with every detail regarding the life and the environment of the juvenile offender.
(c) In the preliminary proceedings it is necessary to study very thoroughly the family life and social conditions in which the child has grown up. The most satisfactory way is to seek the necessary information from the parents or other persons in authority, or from other adult associates of the child, as from the guardian, the teacher, the clergyman, or from servants.
(d) A child awaiting trial should on no account be sent to prison. If safe custody of the person is essential, some grown person in whom the court has confidence must be made responsible for the care of the child.
(e) The prosecuting authority should have the right to make any proposal which may further the child’s interests, including a proposal to send the accused to a reformatory.
(f) The trial should on no account be a public one. (It is essential, when criminal proceedings are taken against a minor, that no other minors should be admitted to court as idle spectators.) We are concerned, not with the punishment, but with the education of a child, and the matter is not one suitable for the fullest publicity. But for the protection of the child’s interests, it is, of course, necessary that the legal representatives of the accused, and the officials of organisations for child-protection, should attend the proceedings.
(g) Juveniles should never be tried by a jury. This proceeding is too solemn and too elaborate. Moreover, it is not within the competence of a jury to determine whether the child possesses the understanding so frequently mentioned as to the punishable character of the offence. The only reason for which trial by jury might be advantageous, is that a jury is more apt than a judge to take a mild view.
(h) In the first instance, even in the case of graver offences, the matter should come before an individual judge. Whenever possible, he should be one experienced in matters of education and psychology, and one whose specialty it is to deal with juvenile offenders. The majority of criminal judges[246] do not possess to-day the experience and training requisite to the competent handling of juvenile offenders, inasmuch as the majority of criminals brought before them are adults. In every law court there should be one judge whose specialty it is to deal with juvenile offenders; in countries in which the law court is also the Board of Guardianship (see note on p. 74), juvenile offenders should be brought before the Children’s Judge (Pupilarrichter), who knows the children better than his professional colleagues. Criminal proceedings against children tend more and more to assume the form simply of the choice of the necessary educational measures. Inasmuch as a coercive reformatory education, when not the outcome of a criminal prosecution, has, in most cases, been prescribed by the Board of Guardianship, it would seem as well that the power to order a coercive reformatory education in the case also of juvenile criminal offenders should be transferred to the law court which works under the authority of the Board of Guardianship.
(i) The prosecuting authority and the law court must keep in close touch with all the associations devoted to the work of child-protection, and with the institutions subserving this purpose, and must avail themselves of the counsel and support of these associations and institutions.
(k) In criminal proceedings against juvenile offenders, defence plays a different part from that which it plays in the criminal prosecution of adults. It should not be the principal aim of the defending counsel to secure an acquittal or a diminution of punishment, but rather to make sure that the juvenile offender shall receive the treatment best adapted to effect his reform.
Penal Methods in the United States of America.—It is in the United States of America that penal methods applicable in the case of juvenile offenders have obtained their highest development. Children’s Courts now exist in about thirty of the States; the first of these Courts came into existence in the year 1899. The Children’s Court is either a special department of an ordinary law court, or else a Children’s Court ad hoc; in either case it deals with all the punishable offences committed by children, with the exception of very serious[247] crime. In many of the States of the American union the Children’s Courts deal not only with neglected children and truants from school, but also, and very logically, with certain offences committed by adults; for example, the infliction of excessive punishment upon children, the ill-treatment of children, breaches of the laws regulating child-labour, and the like. In this we see a clear manifestation of the tendency to make the Children’s Court responsible for all legal matters wherein juveniles are concerned. The Children’s Court lays the greatest possible stress upon giving the accused an opportunity, after he has received appropriate instruction, to effect his own amendment without the further intervention of the Court. But should the offence be repeated, a sentence will have to be passed, and the matter of recidivity will have to be taken into consideration. The powers of the Court are the widest possible. It can reprimand the child, punish it, postpone sentence, send it to a reformatory, determining where and how the coercive reformatory education shall be effected, can summon the child before the Court at any time, &c. In many of the States, individualisation and classification have been carried so far that the Courts hold special sittings to deal with truancy from school, the case of neglected children, criminal offences, &c.
The judge of the Children’s Court cannot expect to attain any very valuable results in the absence of a staff of assistants possessing the necessary training. But these assistants are not educationalists, nor doctors, nor child-protectors. The right hand of the Children’s Court is the “Probation Officer,” who is appointed by the Court—a thoroughly cultivated person, generally one trained originally as a teacher, who has received theoretical and practical training in a “philanthropical school.” They have no connection with the police, and yet have some of the powers of police officials. It is their duty to make all the investigations needed by the Court; they compile a record of the personal data of all the children who pass through their hands; they furnish reports to the Courts; help the children and their parents by word and deed, both during and after the legal proceedings, in the manner prescribed by the Courts; if necessary, they find suitable foster-parents, and keep under supervision all the children who are placed on probation.
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The introduction into Europe of this American system is, in the first place, a problem of the organisation of the law courts, inasmuch as the Children’s Court combines the functions of an ordinary law court with those of a Board of Guardianship. In the second place, the problem is one of the reform of criminal law, since the Children’s Courts would be of no value without the power to place children on probation. In such countries as Hungary, in which the authority exercising guardianship is not a law court, but a specialised administrative body, the judge who has to try a child charged with a criminal offence is not empowered to exercise any of the functions of a Board of Guardianship. In those countries in Europe in which it is possible to effect the necessary changes in the organisation of the law courts, and to secure the necessary reforms in criminal law, and where suitable judges for the Children’s Courts are available (the personality of these judges is, of course, a matter of fundamental importance), the introduction of Children’s Courts is possible. In Europe the American example is more and more appreciated and imitated; of recent years advances in this direction have been made in almost every civilised country, not even excepting England, whose legal development is essentially conservative. In the application of these ideas we find numerous differences; in Germany, for instance, several systems are in vogue. The general introduction of the Children’s Courts into Europe is certain to ensue, inasmuch as the conditions which have led to their introduction in America obtain equally in Europe.