A very old adage says that you only learn by your mistakes. And youth is all about making mistakes. It is the natural learning process – the University of Hard Knocks. The best thing would be to overlook all their mistakes. Let them start adult life as reformed persons – matured through all their experiences.
However, there are many that use the above to argue that judges should be lenient towards young offenders. There is no doubt that a criminal record scars a person for life, and that all efforts must be taken to avoid this fate for our children. But can this goal be achieved through the leniency of judges?
Modern judges struggle with a dilemma every day, the dilemma between reform and deterrence. Modern jurisprudence believes that it has overcome the barbarity of “an eye for an eye, and a tooth for a tooth”. Humanism is thought to be the new guiding principle – that which puts faith in the basic goodness of man, the principle that says that if given a fair shot in life a person inevitably chooses the path of good. The social sciences are all built around this basic tenet, and judges find it difficult to ignore the findings of science.
But by the same token, society itself has changed beyond all recognition. The same Humanism is also responsible for the liberal attitudes that, in the final analysis, have given rise to the nuclear family. In fact, even the nuclear family is threatened by the preponderance of divorce, cohabitation, homosexuality and other trends. The final upshot is parental abscondment. Individualism stresses the importance of personal goals over parental responsibility. Very often the situation is that both parents work full-time and therefore have little time left to devote to their children’s upbringing. Also missing are the traditional forms of support from grandparents and other family members in the periphery. In such a situation, the brunt of the responsibility for upbringing falls on the schools in the first instance, governmental bodies of social work as the next port of call, and the criminal courts as the final resort.
Overburdened teachers are not really the people from whom personalized and targeted care is to be expected. The bodies of social work perform much valuable work in their advisory role. They assess risk factors that give rise to deviancy, and tailor their approaches to individuals that are likely to offend. Social workers are social scientists and know their work well. But in the end, social workers can never be true carers. A true carer does not only analyze case histories and work out individualized plans. A true carer is one who also stamps down his or her authority in the case of infringement – when a final line has been crossed. This crucial role ultimately devolves on the criminal courts. It is up to them to mete out the necessary punishments.
Modern judges, well versed in social theory, are willing to take everything into account. As Judge Irving R. Kaufman puts the case, “The judge’s prime objective is not to punish but to treat.” But no amount of social theory is able to solve the dilemma between reform and deterrence. Taking the general case of an adult, the judge may well be intent on reforming the criminal, to let his mistake act as a lesson to him. But he is also aware that as upholder of the law, his sentence must act as deterrence. It must deter not only the criminal in question, but must also send the message to wider society that crime does not pay. Judge Kaufman continues, “In determining what sentence would be the best from the point of view of deterrence, neither the judge nor the legislature has any real scientific guide.”
Now, if this is the case with the normal adults, with children the problem is much more severe. In order to be compassionate, what can the judge do? The entire legal procedure must be set aside as irrelevant. The judge only needs to face the individual offender and tell him, “Sonny, I’m letting you off this time! But behave in the future!” To what extent this individual human encounter touches those concerned is not known. But nobody doubts the message sent to young people around the country. If adults cannot respect the lenient judge, do you expect children to? Of course not. Prospective offenders are only likely to laugh in the face of justice.
The problem is easily identified. The judge is being made to act as a parent, which is not really his role. The role of the judge is to administer the law, to instill into people respect for the law. If the law contains the word “lenient”, lawyers will make whatever they like of it. The only real kind of leniency that can be expected from the judge is as a human being. This is especially the case when dealing with minors. It is ultimately a question of a responsible member of society giving the offending minor a good telling off. Why should the judge be expected to do this? Why, especially at the risk of making a mockery of the law?
The judge is being expected to do this because the parent is not. This is just a further lesson that nothing can replace parental guidance.
Nobody would like to see a young person burdened with a criminal record for the rest of his life. Youth is a wonderful thing, and a criminal record is a horrible blot on it. If the blot is result of law following due process, then the matter cannot be helped. You cannot urge the law to be “lenient”, especially not in the case of minors. Judges should not be impelled into the role of parents. It must be insisted that parents do their duty.
